Law360 (September 30, 2019, 3:21 PM EDT) -- U.S. companies seeking to hire foreign nationals are facing a tougher road to securing visas for their foreign workers due to ever-increasing processing delays caused by requests for evidence, or RFEs, issued by U.S. Citizenship and Immigration Services and an increased rate of immigration petition denials.

U.S. companies hire foreign nationals for a number of reasons, including: Not enough U.S. workers are available; able and willing to do the job; the foreign national has specialized knowledge not available in the U.S.; the foreign national has extraordinary ability in a certain field; just to name a few.

Despite the legitimate business reasons companies sponsor foreign workers for U.S. work visas, under the current administration, USCIS’ recent adjudication practices have been placing increased burdens on U.S. employers seeking to optimize and grow their business by hiring foreign talent.

USCIS confirmed that for fiscal year 2018, the agency had 5,691,839 backlogged cases, a massive increase from the 3,290,668 backlogged cases in FY 2014, and representing an approximate 70% increase in backlogged petitions.[1] This increasing volume of backlogged cases is especially concerning given that the number of applications filed with USCIS has declined within the last few years.[2]

While the severe backlog can be attributed to several reasons including USCIS’ rescission of its long-standing deference policy, addition of mandatory in-person immigration interviews for all individuals adjusting status in the U.S. to permanent resident and addition of biometrics collection for spouses of nonimmigrant workers, one of the primary reasons for the long processing timelines and backlogged petition adjudications is the increasing number of RFEs issued by USCIS.

In FY 2015, 22% of new H-1B petitions (reserved for degreed professionals entering a specialty occupation) filed were issued an RFE and 80% of these petitions were ultimately approved.[3] In contrast, in FY 2018, 38% of initial H-1B petitions received an RFE and only 62.4% of those were approved, and, for FY 2019, thus far, approximately 40% of initial H-1B petitions have been issued an RFE and 62.7% have been approved.

Similarly, in FY 2015, 34% of new L-1 petitions (reserved for transferees from affiliated offices abroad entering a specialized knowledge or high-level managerial/executive role) filed were issued an RFE and 53.5% of those were approved. However, this number increased to 45.6% of new L-1 petitions receiving an RFE in FY 2018 and 53.7% of new L-1 petitions receiving an RFE in FY 2019 thus far, with approval ratings falling to 52.9% and 50.7%, respectively, for these years.

As such, with the increasing RFE issuance and petition denial rates, employers are facing lengthy adjudication timelines — not to mention significantly increased legal fees — when filing work visa applications on behalf of foreign nationals as they work to respond to RFEs and compile the voluminous documentation usually requested by the government, with a high potential to ultimately face a denial of the work visa.

Despite the uphill battle to secure work visas, for many U.S. companies, hiring foreign nationals is a necessity. For example, many health care systems struggle to find U.S. doctors to staff their hospitals located in areas considered medically underserved, and rely on hiring foreign national doctors to continue serving the community. Consequently, it is vital that U.S. companies seeking work visas be prepared to handle the very likely RFE that will come once an immigration petition is submitted to USCIS.

The recent years and the new administration have brought a new beast of RFEs to the forefront.

Based on some of my recent experiences, RFEs are lengthy, often filled with boilerplate language betraying that the petition may have never even been reviewed by an officer, request an inordinate amount of evidence in support of the petition, and are riddled with mistakes. Employers should not be surprised to receive an RFE questioning whether a computer programmer position qualifies for an H-1B visa when the employer filed a petition for the position of petroleum engineer, requesting supporting documents that were already included in the initial application, or claiming nonreceipt of certain applications for which the employer has received confirmations of acceptance from the government.

Most ominously, these RFEs often misinterpret U.S. immigration laws. Recent RFE experiences include the government incorrectly claiming that positions designated at a level 1 wage under the government’s wage system, and thus categorized as an entry-level position, cannot classify as a specialty occupation under H-1B regulations, or incorrectly claiming that an L-1B beneficiary who legally changes status to an L-1A beneficiary should not receive the benefit afforded to L-1A beneficiaries of receiving a seven-year vs. five-year term of stay in the U.S.

While employers should retain immigration counsel to assist in answering and correcting the government’s misinterpretation of the law, U.S. companies will need to be active participants in the RFE response process, particularly as it concerns the gathering of supporting evidence.

Before any application for an immigration benefit is filed with the U.S. government, employers should ensure that the company and the foreign national have a mutual understanding of the upcoming process and timelines, and that the company is as well positioned as possible to quickly respond to an RFE. The U.S. employer should:

1. Begin compiling the supporting documentation that will most likely be requested in an RFE:
   • If the foreign national is in the U.S., discuss the foreign national’s ability to remain employed in the U.S. during the pendency of the new immigration application with an immigration attorney and discuss and plan for any possible U.S. employment authorization interruption.
   • If the foreign national is abroad, take into account that even after the RFE response has been submitted and the petition is approved, the foreign national will need to attend a consular interview and obtain a visa from a consulate abroad (unless they are a Canadian national).
   • Discuss realistic employment start dates with the foreign national.
   • Any other documentation that could help support the company’s and the U.S. position’s eligibility for the work visa (e.g., if seeking an L-1B visa for a foreign national with specialized knowledge of the companies’ proprietary products, are there copies of patents available for the products? If seeking an H-1B visa, are there copies of the company’s prior job postings for the position evidencing requirement of a Bachelor’s degree for the position?).
   • Organizational charts for the company should be routinely updated with current workers’ names as well as job titles.
   • Samples of work product are another popular item requested in RFEs, and companies should be compiling the best representative sampling of work product for the proffered position (this can be work product developed by the foreign national being sponsored or any other worker in the same position).
   • As companies’ official position descriptions for positions are often requested in RFEs, companies should ensure these are kept up to date, specifying the position’s professional responsibilities and minimum education and work experience qualifications required for the position.
2. Along with immigration counsel, discuss the best filing method for the immigration petition.
   • What are the implications of requesting premium processing after the immigration petition has been submitted but before receiving an RFE? What are the possible implications of requesting premium processing after an RFE has been issued?
   • Should the company initially file the immigration petition using the USCIS’s premium processing (15-day expedited processing) service? While this will often just result in receiving an RFE faster than had the regular processing option been used, depending on the foreign national’s specific case details, this may be a good filing option  
3. Have a plan of action in place for the worst case scenario of an immigration application denial.
   • Is the foreign national possibly eligible for a different type of immigration benefit?
   • If a student, could the foreign national obtain Optional Practical Training (OPT) employment authorization through their school?
   • What are the chances of success on an appeal of the denial?

Planning per the above will put U.S. companies and their foreign national workers one step ahead of the game, avoid delays caused by last-minute gathering of voluminous documentation and, hopefully, lessen the stress of uncertainty that RFEs bring to the already complicated immigration process.

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