shutterstock_147492446I’m surrounded by dry Christmas trees lying on the sidewalk, nobody is eating and drinking ridiculous amounts any more, and people are pretending to exercise as part of their New Year’s resolutions  – it must be H-1B season!

For 2015, here we are again, with no increase in numbers to the H-1B cap (at least not as of yet). We face harsher adjudicators, with more clients who want to apply, and those clients want a guarantee that they will definitely obtain an H-1B. Such a guarantee can’t be given – not just because of the cap and resulting lottery, but because any denial is almost always upheld. According to the 2013 Ombudsman’s report which was brought to our attention by Diane Butler of Seattle, WA, “The vast majority of appeals to the AAO are dismissed, that is, denials are upheld.  For H-1Bs in 2013, 858 appeals were dismissed and only 12 appeals were sustained (overturning denials), approximately 1%!

Wait, why are we excited to start H-1B season again?

The H-1B is one of the few visas available for US employers who want to remain competitive in the global economy, that do not require a particular nationality (Es), extraordinary ability (Os), or having worked for that company previously (Ls). Seems like these are people our country would want to encourage. Instead we attorneys are constantly battling the service centers for a visa that not only helps to retain talented young students who have newly graduated, but also gives US employers a choice in worker.

There is nothing more frustrating than an employer telling you how much they desperately need this person, how much value this person either already brings to the table or how much they believe the person will add value to the company and help that company to grow, and yet USCIS has taken very strict, almost draconian views of a small company’s ability to support a new position, and in particular a business development position.

I don’t mind sharing with you (although it pains me) that I had a particularly tough denial for a small but growing company.  It was immensely frustrating because the company, though small, had a detailed business plan which included growth, they had funding of well over a million dollars, and were registered on the SEC showing their plans to go public, and we submitted letters of support from other companies, similar jobs from the industry.  Crickets.  USCIS rejected our evidence and even stated that “companies such as yours would normally outsource such a position.”  Really?  Not only do you want to deny this position, but now you want a company from the U.S. to outsource this job???   Years ago the same position, for the same type of company would have been approved in the blink of an eye.  Times have changed.

We are not completely powerless.  First and foremost, as attorneys we need to make sure that our work is exemplary.  If we are armed with an airtight case, it will make the next stages much easier to embark upon.  Next, you need to know your options after an egregious denial: do you appeal?  Do you litigate?  Litigation?  I am a business immigration attorney.  I do transactional work, not the courtroom.  Can you do it?

Absolutely!  Tammy Fox-Isicoff of Miami, FL has tried and tested this method with success: “I haven’t abandoned all hope- but after 30 yrs. of doing this… and holding out “hope,” the hope is fading. Much of the time, I go to Federal Court. pro bono, even for clients who can pay, to right a wrong. Federal Court is all on motion, on these cases. The Court looks at the administrative records and decides if the immigration decision is arbitrary, capricious or an abuse of discretion. I paper my files, put in affidavits from experts, and academia. The government provides no experts. It is often not difficult to litigate and win a well prepared NIV filing. In fact, usually the appeal becomes the Motion for Summary Judgment-thus the time commitment is often only several hours more than it was for the appeal. ”

But we should not stop at litigation.  Not everyone has the time or resources for that.  We need to collectively strategize and bring to the attention of the Administration what a waste of resources these denials are.  Additionally, think about the loss in tax revenue, resources and filing fees for employers.  Employers/businesses are constituents too.   Congressmen should be bending over backwards to help businesses with this issue.  The enormous misconception is that H-1Bs are cheap labor.  Whoever made that statement clearly did not look up the Department of Labor’s wage survey.  Collectively, we can change this.

And until we do, we all still have the cap season ahead of us.

On Monday night, AILA’s New York City Chapter had our 2015 kick-off meeting.  The topic was H-1Bs Strategies and Preparing For April 1st. We were joined by Rachel Baskin, Bill Stock, Allen Orr and Alexis Axelimage1 (2)rad, who all gave us helpful hints and strategies of how to deal with upcoming H-1B season. Here are a few highlights:

  • File the LCA Early: It is never too early to file an LCA. Sure, the employee will lose 4-6 months on the back end, but that is not completely lost by any means. It is better to start filing them now and avoid iCert issues, business existence issues and general glitches or errors.
  • History: Find out the US immigration history of the Beneficiary: surprisingly some people are not aware that they have even had an H-1B before. You may be able to file now to see if their H-1B can be ported, and at least you will find out now instead of in the lottery on April 1st.
  • Errors: Unfortunately, errors are fatal during a lottery. Any mistake can cost you the petition – checks, signatures, lack of checking the correct box.
  • Quality control: For solos or small practices, everyone really: get it done early. Don’t put a package together same day as you are sending it out. If you scan items in, review the pdf.  Review the shipping label. Do not send to the wrong address. Did the employer move since you last filed a petition for them? Review, review, review.
  • Filing Fees: If your client does not want to write the filing fee checks directly, or you wish to monitor the checks, put the money in the trust account and write checks from the trust account.
  • Don’t hold back: given the shift toward negative adjudications, don’t hold back any information/evidence that could bolster the case.

Whether you have one H-1B to file, or ten, or one thousand, we are all in this together. The only way to show that USCIS is issuing unreasonable RFEs is to send them to or use liaison.

See you at season’s end!

Written by Neena Dutta, Chair, AILA NYC Chapter