Trump administration red tape tangles up visas for skilled foreigners, data shows

The Trump administration is making it more difficult for skilled foreigners to work in the United States, challenging visa applications more often than at nearly any point in the Obama era, according to data reviewed by Reuters.

The more intense scrutiny of the applications for H-1B visas comes after President Donald Trump called for changes to the visa program so that it benefits the highest-paid workers, though he has not enacted any such reforms.

Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.

The challenges, which can slow down the issuance of visas by months, were issued at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to the USCIS data, which has not been previously reported.

The trend is likely to cheer supporters of Trump’s hardline stance on immigration. They say visas for skilled foreigners undercut American workers by replacing them with low-paid employees shipped in from abroad. But major tech companies, universities and hospitals contend the visas allow them to fill highly specialized jobs for which there are sometimes few qualified Americans.

H-1B visas allow foreign workers, generally with bachelor’s degrees or higher, to work for three years at a time, often in the technology, healthcare and education sectors. Microsoft , Amazon, Google, Apple, Intel, Oracle and Facebook were heavy users of H-1B visas in 2016, according to USCIS data.

The USCIS inquiries typically challenge the basis of the original petitions and assert that the employers do not qualify for the visas. Employers and their lawyers must then provide further evidence to prove their need and eligibility for the visas.

To be sure, the Obama administration also issued a large number of H-1B challenges – nearly 59,000 – from January through August 2016, and a similar number in 2015.

Immigration attorneys have for years complained about redundant and burdensome challenges to high-skilled employment visas. But they say they are seeing a new trend in the Trump era. In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.

Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.

“One way to have an immigration policy that’s consistent with the policy that’s been articulated by the Trump administration is to put more scrutiny on H-1B cases,” said Cyrus Mehta, a New York-based immigration attorney.

USCIS spokesman Robert C. Langston did not directly address the new trend identified by lawyers or the sharp spike in RFEs this year. In an email, he said the agency is applying “currently existing policy that interprets existing statutory and regulatory requirements to evaluate petitions.”

CLOSING LOOPHOLES

Partners HealthCare is a healthcare system that includes Massachusetts General Hospital and Brigham and Women’s Hospital, two prestigious teaching hospitals for Harvard Medical School. It has received more than 50 RFEs from USCIS so far this year, compared to fewer than 15 all of last year in response to a similar number of H-1B petitions, said Anthony Pawelski, an immigration attorney who handles H-1B applications for Partners.

USCIS questioned the hospitals’ connection to the university even though their applications included proof of their non-profit status, a 1948 agreement between Harvard Medical School and the hospitals and even text from the hospitals’ website referencing a 200-year history with the university, Pawelski said.

“They’re doing anything they can to delay the processing and adjudications and in their mind close any perceived loopholes,” he said.

Langston declined to comment on specific H-1B petitions.

It is still unclear how the increase in challenges will affect the number of visas issued this year. In the 2016 fiscal year, USCIS approved 87 percent of H1-B petitions. By June 30 of this year, the agency had approved 59 percent of H-1B petitions, although that number is incomplete because it does not take into account the last three months of the 2017 fiscal year, when a large portion of H-1B applications are processed.

Both Democratic and Republican lawmakers have criticized H-1B visas, because the biggest beneficiaries are outsourcing firms, which critics say use the program to fill lower-level information technology jobs and replace American workers. Members of both parties have introduced legislation this year to reform the visa’s use.

In an April executive order, Trump directed a review of the H1-B program, aimed at ensuring the visas “are awarded to the most-skilled or highest-paid” applicants. The order itself did not implement changes but directed agencies to suggest reforms.

“What the Trump administration has done for the first time in a very long time is take seriously the fact that companies are misusing the H-1B system,” said Russell Harrison, director of government relations at IEEE-USA, the American branch of the Institute of Electrical and Electronics Engineers.

The group opposes the H-1B program but supports giving more high-skilled foreigners employment-based permanent residence.

MORE REQUESTS = MORE EXPENSES

Many of the government challenges for visas for entry-level jobs either say that the salary should be higher because the job is too complex or that the job does not count as a “specialty” occupation, as required by the H-1B program, according to a review of hundreds of RFEs by the American Immigration Lawyers Association provided to Reuters. Entry-level jobs are positions for fresh university graduates with little or no work experience. Such jobs can pay “Level 1” wages, the lowest of four tiers.

“An RFE may be justified if the wage level is not appropriate for the position,” said Langston, the USCIS spokesman.

The USCIS data did not specify what positions the RFEs challenged or the reasons for the challenges.

Lawyers question the implicit argument advanced by USCIS in the challenges – that specialty jobs cannot be entry-level. They point to young doctors and engineers, for instance, who may not have work experience but have spent years learning technical skills.

Though the challenges can come across all industries, the AILA review showed software developers and computer systems analysts were challenged more often than other jobs.

Silicon Valley tech giants either declined to comment or did not respond to requests for comment on whether they had been receiving more RFEs.

The requests can increase legal fees associated with each H-1B visa by as much as half, attorneys said. Government fees for H-1B visas can run upwards of $2,500, and standard fees paid to lawyers per application can easily reach $2,000 or more.

The increased costs and hassle could discourage employers from hiring such foreign workers especially at junior levels, immigration lawyers said.

Jeffrey Gorsky, an attorney with Berry Appelman & Leiden LLP, one of the largest corporate immigration firms in the country, said one of the firm’s clients, a mid-sized tech company, was hit with six RFEs from USCIS in a single day this year.

Between late 2015 and the end of 2016, the company received just one RFE on an H-1B visa petition, he said.