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Ever since President Trump signed the “Buy American, Hire American” Executive Order on April 18th, 2017, there have been a number of changes in the employment-based immigration law arena that have taken place in a very subtle manner. There has been no change in the law concerning H-1B visas. However, there has been a significant increase in the number of Requests for Evidence (RFEs) that have been issued by the USCIS. Typically, an RFE is issued after an application is submitted and if the immigration officer concludes that the information provided is insufficient. Since June 2017, we have seen about 70-80% increase in the number of RFEs that are being issued pursuant to this executive order. The increase of RFEs in the H-1B visa context is illustrative of the “Buy American and Hire American” era. Employers file H-1B petitions on behalf of foreign national employees whom they seek to employ in “specialty occupations” which are defined as occupations that require at least a bachelor’s degree in a specific field, such as doctors, lawyers, and software/hardware engineers.

The RFEs are primarily issued on the basis that the USCIS does not accept that the specific position qualifies as a specialty occupation, or on the basis that the wages paid to the individual does not qualify the position as an H-1B specialty occupation. Similar queries had not been raised by USCIS in previous years.

The number of RFEs and subsequent denials have resulted in many H-1Bs returning to their home country after being in America for a number of years which, in my opinion, will have a detrimental impact on the economy in the long term.

The above change is not the only change that we see. There have been many other subtle changes that are taking place under this administration and the interesting part is that the changes are being made without the formal rule making process, avoiding the legislative process.

Useful Tip:
The Freedom of Information Act (FOIA) is a federal law that establishes the public’s right to obtain information from federal government agencies. So for instance, if an individual does not have copies of their prior filing, or if they have lost documents that they have previously submitted to the USCIS, they can use FOIA request to obtain copies of their records.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

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