Newly released documents from US Citizenship & Immigration Services (USCIS) explain how government policies have increased H-1B denials and Requests for Evidence (RFEs). These government documents, previously hidden from the public and only released after a FOIA lawsuit by the American Immigration Lawyers Association (AILA), demonstrate that USCIS adjudicators have been “directed to restrict approvals of H-1B petitions without the legal or regulatory authority to justify those decisions,” according to Stuart Anderson, executive director of the National Foundation for American Policy, a non-partisan public policy research organization. These restrictions have led to a decrease in highly skilled foreign nationals in the US.

Jonathan Wasden, a partner with Wasden Banias LLC, who has filed lawsuits regarding H-1B adjudications, told Anderson that in the government documents “noncontroversial matters” are supported by statute and regulation but their most “controversial policies” including “overreaching into Department of Labor regulations, requiring guaranteed work assignments and the employer-employee rule” do not have such citations. “It appears that the agency made dramatic changes to H-1B policy without grounding those changes in any law,” he said. “Attorneys have known this is happening in practice, but to see they don’t even attempt to create a facade of statutory support is shocking.” AILA President Marketa Lindt noted: “The documents released by USCIS reveal the way the agency has shifted its focus in these adjudications, creating more obstacles for U.S. businesses to hire and retain the talent they need.”