Under a new policy that came into effect on Tuesday, visa adjudicators at US Citizenship and Immigration Services are now allowed to deny visa applications or petitions without first issuing a notice of intent to deny or a request for additional evidence. In announcing the policy in July, the agency said the policy was “intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”
Immigration lawyers, however, tell ProPublica that the policy will effectively make it much harder for visa applications to succeed, adding to the various procedural barriers the Trump administration has erected to slow down legal immigration to the US. The attorneys expressed concern that “there is not enough oversight or clear standards to ensure fair handling”:
One reason the lawyers are worried is that they’ve seen a barrage of scrutiny directed at once-standard immigration applications since Trump took office. ProPublica spoke with a dozen lawyers and reviewed documentation for several of these cases.
Many responses cited technicalities: One application was not accepted because the seventh page, usually left blank, was not attached. Another was rejected because it did not have a table of contents and exhibit numbers, even though it had other forms of organization. “It seems like they are just making every single submission difficult,” Bonnefil said. “Even the most standard, run-of-the-mill” application.
The US Department of Homeland Security is close to approving a policy that will remove the right of at least some H-1B visa holders’ spouses to work in the US, the Mercury News reported last week, based on a new court filing:
Those affected hold the H-4 visa, a work permit for spouses and under-21 children of H-1B workers. It remains unclear if all spouses of H-1B holders will be banned from working, as Homeland Security has only said “certain H-4 spouses” will be targeted by the new rule. Because not all H-4 holders are allowed to work, it appears that “certain H-4 spouses” may refer to all who are work-eligible.
Controversy over the H-4 has spun off from the furor over the H-1B, which is relied upon heavily by Silicon Valley technology companies but attacked by critics over reported abuses. Homeland Security, which had earlier said it would make the change in February, filed an update in a federal court case on Monday to inform the court that the new rule was in the final “clearance review” and that the department’s intention to impose the ban was unchanged.
H-4 visa holders were granted the right to work under a policy change made by the Obama administration in 2014. The Trump administration began considering a reversal of this policy in April 2017 and it became part of the regulatory changes the government developed in response to President Donald Trump’s “Buy American, Hire American” executive order issued that month, which called for a crackdown on guest worker programs like the H-1B visa and stricter enforcement against allegedly widespread fraud and abuse in these programs. The Department of Homeland Security formally proposed ending work authorization for H-4 visa holders last December.
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More H-1B visas are being granted to US tech companies, whereas India-based outsourcing firms are receiving fewer of them, according to an analysis of government data on 2017 H-1B allocations from the National Foundation for American Policy. This trend, the NFAP argues in its policy brief, “reflect[s] the strong demand for high-skilled talent” in the US and “would appear to undermine the argument that the federal government should impose new restrictions on H-1B visas.”
The Trump administration has indeed been determined to restrict the use of these visas, which are awarded to highly skilled foreign workers to fill gaps in the US labor market, as part of President Donald Trump’s overall anti-immigration posture. While only an act of Congress can fundamentally restructure of the program and Trump’s desired rule changes have not yet been enacted, the administration has subtly undermined it by suspending premium processing two years in a row, tightening approval standards, and proposing to end work authorization for H-4 visa holders, the spouses of H-1B workers (a plan the administration reaffirmed this week).
It is difficult to say with certainty, however, whether the shift observed in the NFAP’s research is a rebuke of the Trump administration’s crackdown or a consequence of it. It may reflect the changing strategies of major Indian outsourcing companies since Trump’s election, which portended a change in H-1B policy and made it riskier for these firms to rely on the visas. Infosys, India’s second-largest IT services and outsourcing company and one of the leading users H-1Bs, announced plans last year to hire 10,000 US citizen employees and open new innovation hubs throughout the US. Infosys said at the time that this decision predated the Trump administration, but it still serves to guard against a scenario in which the supply of H-1B visas was curtailed.
Some observers see the gravitation of H-1Bs away from outsourcing companies as a response to the Trump administration’s policies, or even a sign that these policies are working. Axios’s Stef Kight captured both sides of the debate in her reporting:
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The application period for H-1B temporary skilled worker visas came and went last week, with US Citizenship and Immigration Services reaching its petition cap this year within five days of the application period opening on April 2, CNet reported on Friday. In a process that has become commonplace in recent years, demand for the 85,000 highly-coveted visas issued each year quickly surpassed the number available, prompting USCIS to stop accepting applications. The visas will be awarded by lottery and the recipients will be eligible to come to the US and start working in October.
Nobody is particularly in favor of the H-1B lottery system. Advocates of a more liberal immigration policy consider the annual limit arbitrary and far too low, as in this statement reported by CNet:
“That’s it for the entire year for our nation’s ability to bring in the best and brightest individuals through the H-1B program to come create American jobs,” Todd Schulte, president of FWD.us, a US lobby in favor of immigration reform, said in a statement. “In addition to forcing us to miss out on the creation of American jobs, these arbitrary limits will stifle medical innovation and wage growth, and will hurt our economy.”
At the other end of the spectrum, however, are critics who say the US issues too many of these visas and is insufficiently selective in how it awards them, such as President Donald Trump, who rode into Washington last year vowing to reform the H-1B system as part of a broader effort to reduce both legal and illegal immigration to the US. In his “Buy American, Hire American” executive order issued a year ago, Trump called for changes to the program to crack down on what he described as fraud and abuse, and advocated awarding the visas based on merit rather than by a random lottery.
Nonetheless, the Wall Street Journal reports, this round of H-1B applications visas is being distributed without the major changes Trump has requested.
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For the second year in a row, US Citizenship and Immigration Services has suspended premium processing for all cap-subject petitions for H-1B visas during the filing season for fiscal year 2019, which begins on April 2, Roy Maurer reports at SHRM:
“Premium processing will be delayed … to give USCIS sufficient time to take in the expected large numbers of filings,” said Scott J. FitzGerald, a partner in the Boston office of the global immigration law firm Fragomen. “We do not anticipate that this will delay notification of whether such cases have been selected in the H-1B lottery. Instead, this will delay the time in which the case is approved, subject to a request for evidence, or denied.” …
“The fact that USCIS is only now finishing up its processing of H-1B cap cases filed at this time last year is absolutely unprecedented,” FitzGerald said. “These delays are presumably related to the substantial increase in the issuance of RFEs for those cases. The fact that these cases, filed under regular processing, are receiving final determinations almost a year after they have been filed and almost five months after the requested start date [Oct. 1] is disappointing and seems a clear reflection of the agency’s new and tougher mission statement.”
Quartz’s Ananya Bhattacharya adds that the suspension will likely have a negative impact on the India-based outsourcing firms like Infosys and Tata Consultancy Services that are the most extensive users of the H-1B program, as well as the Silicon Valley tech companies that count on skilled foreign workers hired on these visas to meet their insatiable demand for talent.
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In keeping with President Donald Trump’s agenda of stopping alleged abuses of US work visa programs, US Citizenship and Immigration Services announced a new policy on Thursday that will subject H-1B skilled worker visa applications to greater scrutiny. The changes, which USCIS says are meant to address abuses common among H-1B employers, mean that the agency “may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.”
This will have a significant impact on the outsourcing firms that currently account for the bulk of H-1B visa applications, Ananya Bhattacharya explains at Quartz:
So, when Indian techies, who make for a majority of the H-1B applicants each year, apply for the visas now, they may have to furnish “evidence of actual work assignments,” the notice said. These include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents. In addition, the applications will also have to include various contracts, a worker’s itinerary, and detailed statements of work, among other things.
The move, in line with Trump’s “Buy American and Hire American” executive order from last year, will directly impact an entire cohort of Indian outsourcing firms like Tata Consultancy Services (TCS), Infosys, Wipro, and others. These companies often send workers from India, deputing them to third-party sites on a contract basis. … The closer scrutiny will also likely make H-1B extensions tougher to secure. To get the next round of approvals, the “petitioner should also establish that the H-1B requirements have been met for the entire prior approval period,” the USCIS said.
The US Department of Homeland Security issued a proposed regulatory change on Thursday that would take away the right of spouses of H-1B guest workers who are seeking employment-based lawful permanent resident status to work legally while awaiting their green cards, the Wall Street Journal reports.
In 2015, the Obama administration introduced a program allowing these holders of H-4 visas (the visa granted to spouses of workers on H-1Bs so that they can live together in the United States) to obtain legal authorization to work. In a notice of intent to propose a rule next year, the department says it is proposing “to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.”
The notice cites the executive order President Donald Trump issued in April, titled “Buy American, Hire American,” which called on the departments of Labor, Justice, Homeland Security and State to crack down on the abuse of guest worker visa programs like the H-1B and H-4, and to amend procedures for allocating H-1B visas that award them based on merit rather than through a lottery.
Opponents of the Obama administration’s rule letting H-4 spouses work contend that it was an act of executive overreach (and are challenging it in court on that basis); the Trump administration “appears to be signaling that it intends to overturn it rather than defend it,” the Journal reports. Critics also say the previous administration did not do enough to ensure that H-4B holders did not displace American workers.