New Documents Show Instructions on H-1Bs Not Grounded in Law, Critics Claim

September 20, 2019

Opponents of the Trump administration’s heightened scrutiny of H-1B visas argue that newly released documents by the U.S. Citizenship and immigration Services show that instructions given to H-1B adjudicators in making denials and requests for evidence are not supported by legal or regulatory authority.

Since 2015, denial rates for H-1B applications have increased by more than a factor of five, from 6% to 32%, while request for evidence rates have nearly doubled, reaching 60% in the first quarter of 2019.

The USCIS documents instruct H-1B adjudicators when and how to make decisions regarding denying an application or issuing a request for evidence.

“It appears that the agency made dramatic changes to H-1B policy without grounding those changes in any law,” said Jonathan Wasden, a partner with Wasden Banias LLC who has filed lawsuits on USCIS H-1B adjudications.

“What the documents do not say is more important than what they say,” Wasden said in an interview.  “You see that the noncontroversial matters are all supported by citation to statute and regulation.  However, their most controversial policies (overreaching into Department of Labor regulations, requiring guaranteed work assignments, and the employer-employee rule) lack any such support.”

Meanwhile, the government has indicated that a promised elimination of a work program for H-1B spouses has been delayed until at least early spring of 2020.  And even that timeframe is “aspirational,” lawyers for the Department of Homeland Security told the U.S. Court of Appeals for the District of Columbia.

What it means: The court system has been and remains the primary vehicle to challenge the Trump administration’s policies on adjudicating H-1B visas.  This information could provide fuel to these arguments.