Recent Immigration Changes Affecting the Tech Talent Pipeline

Most recently, effective September 11, 2018, USCIS suspended premium processing, a fast track option, for certain H-1B petitions. This suspension increases the waiting time for approval from 15 days to approximately 6 months. It is likely to have a chilling effect on the willingness of IT professionals to switch employers as there is a concern that a long waiting period may put their work authorization status in jeopardy.

Another impactful change is that USCIS is no longer giving deference to previously approved H-1B petitions, which now requires that the employer again demonstrate that the job meets the definition of a specialty occupation and the worker is qualified to perform the work. This is the standard for all H-1B petitions based on previous approvals, even if petition seeks an extension for the same job and same employer. Overall, there is increased scrutiny on all H-1B petitions, including transfers, extensions and amendments.

Specific to IT staffing agencies, there has been increased scrutiny on the petitioner’s right to control (demonstrating an employer-employee relationship) and proof of a specialty occupation. Both items require more detailed documentation from the end client and present challenges to H-1B petitions that are for employees of subcontractors that do not have a direct relationship with the end client.

The July 5, 2018 Notice to Appear Memo and the July 13, 2018 H-1B Request for Evidence Memo have also contributed to creating a chilling effect on IT professionals looking to change employers. The Notice to Appear Memo, with implementation beginning on October 1, 2018, instructs USCIS officers to issue a Notice to Appear to any individual who is “not lawfully present.” This Memo raises the stakes for H-1B beneficiaries if a petition is ultimately denied. The Request for Evidence Memo, effective September 11, 2018, allows agents to deny applications that are incomplete or have errors, without first issuing a Request for Evidence, which has been the practice for quite some time.

With USCIS policies changing frequently, and often without sufficient notice and lacking clarity, it’s important to remain agile and work closely with information technology staffing partners to ensure access to top talent.

This post is for informational purposes only and not intended to be, and should not be construed as, legal advice or counsel for any particular situation or set of facts.

Joseph Nullmeyer, Esq. is the General Counsel of Mitchell Martin Inc., where he manages the business immigration program. He is an active member of the American Immigration Lawyers Association and is currently serving on the Board of Directors of the Association of Corporate Counsel Greater Philadelphia Chapter.

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