Business As Usual: Making a Successful US Visa Application at a time of Heightened Scrutiny
06 February 2019by nnuimmigration -- last modified 06 February 2019
The reality we're all facing today is that US visa applications across every classification are enduring increased scrutiny by US immigration authorities.
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The uncertainty and lack of consistency is highly disruptive for businesses seeking to plan their global mobility and the instability is impacting the attractiveness of the US for the entrepreneurial minded.
While under the Obama Administration, the US saw an overall rise in the number of visas issued to foreign visitors, from 5.8 million in fiscal year 2009 to a peak of 10.9 million in fiscal year 2015, from our own experience and dealings with US consulates, we hardly need the stats to tell us those days are long since over.
In Obama's last full fiscal year in 2016, the U.S. granted 10,381,491 nonimmigrant visas. In 2017 that number had dropped to 9,681,913. Looking specifically at nonimmigrant visas issued out of the United Kingdom, 140,188 were issued in 2017 against 142,133 in 2016.
Nonimmigrant employment petitions that two years, or even 12 months ago, would have been comfortably approved are now being challenged and, under the Department of Homeland Security Policy Memorandum, PM-602-0163, face the very real risk of outright denial for minor application errors.
PM-602-0163 constituted in no uncertain terms a formidable weapon in the USCIS adjudicating officer's armory.
Adjudicating officers are now empowered with greater discretion to deny an application or petition without first issuing an RFE or NOID. This is slowing processing times and creating greater uncertainty as to the expected outcome of applications.
Stress-testing your petitions
It's a tough period for US employment visa petitions as we assume a default position that the adjudicator is looking for reasons to challenge, not reasons to approve.
Petitions should be pre-empting, addressing and countering potential adjudicator objections to avoid RFE and NOID scenarios. The question to answer with every petition is 'Why can't a US worker do this job?'
This means looking for patterns in areas of objection, trends in decision-making across USCIS Service Centers, identifying scope for tolerances, and evidencing and over-documenting as thoroughly and meticulously as possible.
Here are some of the challenges across specific employment visa categories:
L-1 visa
L-1s are being hit particularly hard by adjudicators. Most of the scrutiny is being levied at the individual applicants. Are they really satisfying the requisite skill level under the visa? Are they really a manager? Will they really be undertaking senior level duties as per the requirements, or they will they actually be carrying out day-to-day functional duties?
For L-1B employees, do they really possess specialized knowledge that sets them apart from others in the US labor market? Are they really an employee? If so, have they worked for the company for one full year? Adjudicators are questioning at great length well-established and well-documented facts.
In addition to providing a cogent narrative of the high level of skill and seniority of the employee, employers should consider testing the labor market by hiring recruiters to find qualified workers for the role. These recruitment efforts should form part of the evidence in the L-1 submission.
E-1 visa and E-2 visa
The E visas present an interesting position since the eligibility criteria focus on job creation for resident US workers as well as robust investment into the US business. It is therefore necessary to put into sharper focus the way in which the investment will generate jobs for US workers.
As with the L-1 visas, it could also be advantageous to undertake recruitment efforts in the United States prior to the submission of an employee E-2 application.
We expect entrepreneurs will need to look at building a stronger case of substantial investment leading to job creation. Given the already extensive and sophisticated nature of the evidentiary requirements, both the company and the lawyer representing the company have their work cut out for them.
H-1Bs – Wage levels
While the H-1B has always operated as a lottery, now, even where a beneficiary has been selected, the jackpot may still be out of reach by virtue of the new government guidelines.
One area of particular focus for H-1B petitions is in respect of the prevailing wage requirement. A delicate balance needs to be achieved when setting the wage rate – too low and the petition fails to meet the threshold, too high and the sponsoring employer may not be able to bear it. Substantial market research and evidence should be used to back up the proffered salary.
O-1 visa
"Extraordinary ability" is inherently challenging to define and apply consistently across fields. Despite regulations outlining the criteria for O-1 classification, the category has always been subject to a high level of discretion on the part of the examiner and under the Trump administration the questioning has intensified significantly.
This makes credible endorsements critical. The burden of proof rests on the applicant to a much higher degree than ever before.
Land of Opportunity?
The challenges facing prospective visa applicants is daunting, and it could be a long time before we see a reversal in the direction the government is taking. But there are many compelling reasons to pursue business opportunities in the United States.
The business tax climate, cost of living, education opportunities for family members and the ecosystem for start-up companies are still robust. The United States still remains a land of opportunity for those determined, persistent, relentless, and ready to play the long game.
Nita Nicole Upadhye is the Founder and Managing Attorney at London-based US immigration law firm, NNU Immigration.
NNU Immigration is a leading provider of US immigration support to a wide range of clients across all industry sectors.
NNU Immigration