The negative impact of the recent trend of heightened scrutiny of employment-based immigration benefits (as evidenced by DOL’s statistics of increased PERM audits and denials, along with USCIS’ increased requests for evidence (“RFEs”)) was thrust into the limelight by recent coverage in Bloomberg Businessweek in an article entitled “Want to Move A Worker to the U.S.? Good Luck”.
The article discussed the utter frustration experienced by Oracle Corporation (NASDAQ:ORCL) regarding the increasing difficulty and expense in hiring and transferring foreign technology workers. According to Denise Rahmani, the Director of the U.S. Immigration program at Oracle, the government denied an astonishing 38% of the Oracle’s visa requests last year. In the wake of these results, Ms. Rahmani has indicated that in today’s climate of heightened scrunity, “it feels like the roll of the dice every time.”
While these frustrations are nothing new to multinational companies, large or small, Oracle’s recent complaints bring to life the realities associated with the recent trend by both USCIS and DOL of heightened scrutiny and standards of proof for employment-based petitions and applications. Many companies, like Oracle, assert that the denials and requests for evidence are arbitrary in nature, the results of which often cost these companies millions of dollars in unnecessary expenses. Indeed, in one rather gleaming example of the arbitrary nature of some of these USCIS denials, Ms. Rahmani reported that an Oracle worker’s request for an extension of stay of his/her L-1B nonimmigrant classification was denied because USCIS determined that the company failed to demonstrate the particular worker’s specialized knowledge of a certain type of Oracle software when, in reality, this particular employee was responsible for writing Oracle’s training manual for that software.
It’s easy to understand the frustrations of Oracle and other companies. The higher instances of issuance of requests for evidence and ultimate denials reflect a major policy change in the Obama Administration of the immigration policy from prior years, when the denial rate for petitions seeking the L-1B classification, for example, was in the single digits. Since 2008, the denial rate has tripled.
USCIS Director Alejandro Mayorkas acknowledges the criticism that his office is inconsistent in its decision-making is “in part warranted,” and that he’s working to fix the problem.
Bloomberg Businessweek posits that perhaps there aren’t enough caseworkers to properly handle the 400,000+ petitions filed every year for nonimmigrant workers and, that further, it is probably difficult for some caseworkers at USCIS to understand certain specialized fields, or whether or not American workers would be able to perform some jobs as well as the foreign workers many companies aim to hire.
These frustrations have resulted in large companies including Oracle, Microsoft, Starwood Hotels and 50 other companies writing a letter to the Obama Administration warning them that this practice was hurting the American economy and job growth.
Only time will tell if such letter will result in any type of policy change or whether the government will continue the disturbing trend of increased audits, RFEs and denials.