If patience is a virtue, then Fernando* and his employer have it in spades.

Originally from Bolivia, Fernando started working in 2017 on an F-1 OPT (Optional Practical Training) status as a graphic designer for a Bay Area startup. Fernando quickly became a valued member of the company’s team. With Fernando’s work authorization set to expire, his company decided to sponsor him for an H-1B specialty occupation visa in last April’s H-1B lottery. The company approached the Alcorn Immigration Law team for help.

Despite the painfully long processing time and voluminous Request for Evidence (RFEs) that Fernando and his employer endured, we’re pleased to say we obtained approval for him.  These issues have become the new normal under the Trump administration. The new normal means increased employee recruiting and retention costs for employers. However, winning at immigration is still possible.

Last April, U.S. Citizenship and Immigration Services (USCIS) suspended premium processing for most H-1B petitions for the second consecutive year. USCIS extended the suspension through Feb. 19, 2019. With premium processing, a company pays a fee to find out within 15 calendar days whether a prospective or current employee is eligible for an H-1B visa. Meanwhile, processing times for H-1B petitions has increased to nearly one year.

Lost Livelihood

In Fernando’s case, an especially challenging petition added to the processing time. When his OPT work authorization document (EAD) expired, USCIS still had not made a decision on his H-1B petition. As a result, Fernando had to stop working for a few months.

“It was very important to the company that the H-1B got approved because they would have to replace Fernando if it didn’t,” says Gabby Phillips, a legal secretary and a member of the Alcorn Immigration Law team that worked with Fernando and his employer. “As a small startup, replacing a valuable key employee is incredibly difficult.”

For Fernando, leaving his job and his family’s sole source of income “was very stressful as you can imagine,” adds Phillips, who has helped attorneys with H-1B petitions for more than three years. “All he was thinking about is, “How will I feed my family?’”

Shifting Standards

Recently, Compete America, a coalition of American employers and higher education and industry associations, asserted that USCIS has changed how it adjudicates H-1B petitions. That has led to more RFEs, Notices of Intent to Deny (NOIDs), and Notices of Intent to Revoke (NOIRs). Moreover, the group asserts that USCIS made these changes without going through the proper process for revising H-1B-related regulations.

USCIS contended that Fernando was ineligible for an H-1B because a graphic designer position does not require a bachelor’s degree. However, we argued that graphic designers need a bachelor’s degree, including Fernando’s position.

Lessons Learned

Our team did an excellent job of fighting USCIS’s allegations. USCIS approved Fernando’s H-1B visa as a graphic designer a few months after we got involved. And much to his—and his employer’s—relief, Fernando went back to work.

The Trump administration’s policies are building an invisible wall by slowing and curbing legal immigration. Still, we are proud to say that the Alcorn Immigration Law team has maintained our 95-plus percent success rate under the Trump administration. We start with a needs assessment and strategy discussion. And we cover everything through to monitoring processing and addressing any Requests for Evidence (RFE) once we file a petition with USCIS.

Reach out to us if we can make the Alcorn Immigration Method work for you. If you found this information helpful, please let us know in the comments section below.

* To maintain confidentiality, the name of the client has been changed, and details may have been omitted or slightly altered. Our success in a case does not predict nor guarantee the outcome in your legal matter. The result portrayed above was dependent on the facts of that case. Results will differ based on different facts.