The administration began rejecting more visa extensions for immigrants with high-tech or other specialized skills, a little-noticed policy change that will put the brakes on migration.
The administration says the shift is meant to to root out fraud. Silicon Valley argues it is hurting the economy by pushing away the smartest immigrants.
The policy mainly involves changes to the H-1B visa program, which allows companies to sponsor immigrants with a bachelor’s degree or higher. The visas are highly sought after by companies in fields such as software development, who argue the jobs would otherwise go unfilled.
The Department of Homeland Security gives out a total of 85,000 new visas a year, a level set by Congress. Existing visas can be renewed, however. The total number of visa holders is above 1.6 million.
Traditionally, once a visa was received, it was automatically renewed. The Trump administration changed that in late 2017. The U.S. Citizenship and Immigration Services announced that it directed its officers “to apply the same level of scrutiny to both initial applications and extension requests.” This would apply even in instances where “the petitioner, beneficiary and the underlying facts are unchanged.”
Cases that receive additional scrutiny involve requests for evidence, RFEs in bureaucratic-speak. These are demands by USCIS that the sponsoring company and the visa holder provide additional documentation to verify the claims in the visas. They typically seek proof that the job being filled really does require specialized education and that the visa holder really does work for the sponsor. RFEs can result in further RFEs if the new information clashes with the old. Investigators are not bound by prior determinations. Even if a probe confirms the fact that nothing had changed, the visa isn’t guaranteed a renewal.
USCIS spokeswoman Jessica Collins told the Washington Examiner that the shift was about “ensuring the integrity of the immigration benefits system” and protecting U.S. workers.
“It is incumbent upon the petitioner, not the government, to demonstrate that he or she meets the eligibility under the law for a desired immigration benefit,” she said. “USCIS continues to adjudicate all petitions, applications, and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable laws and regulations.”
In the first three months of 2019, USCIS reported that it issued RFEs in response to 60% of all H-1B petitions, compared with a rate of 24% for the same period in 2015. The higher level of scrutiny has resulted in more visas being rejected. The approval rate of cases where RFEs were issued was 83% in 2015 but fell to 62% in 2018. The overall approval rate for H-1B petitions stood at 83% in 2015, and dropped to 62% in 2018. The decline comes at a time when the USCIS has seen an overall increase in petitions, going from 368,000 in 2015 to 419,000 in 2018.
The Chamber of Commerce and the Information Technology Industry Council said in a joint statement to the House Judiciary Committee in July that the new policies were undermining the ability of businesses to make use of workers due to uncertainty over their visa status. The changes had resulted an “inability to meet contractual deadlines, having to refuse to take on new clients, and forcing companies to move their valued, long-time employees out of the country in cases where visa petitions were unexpectedly denied.”
Critics argue the RFEs serve little purpose other than to complicate the approval process. “Although these policies have been issued under the guise of extreme vetting and protecting U.S. workers, these policy objectives ring hollow when faced with the reality on the ground — where the majority of cases have no indicia of fraud or national security concerns and many U.S. employers are struggling to meet their personnel needs due to a low unemployment rate,” Sharvari Dalal-Dheini, director of government relations for American Immigration Lawyers Association, told the Washington Examiner.
Dalal-Dheini said that requests for visas or other benefits often include “hundreds of pages” of evidence, but USCIS will still request additional information. In some cases, it will even request evidence that has already been provided.
Unions welcome the additional scrutiny, saying companies have long abused the visa program. “People are being held hostage at times by their employers, who are saying, ‘Do it my way whether it’s safe or right or else we’ll send you back,’” said Jamie Horwitz, spokesman for the International Federation of Professional and Technical Engineers.
Fraud does happen. USCIS indicted Weiyun “Kelly” Huang, a Chicago businesswoman, in late July on charges that that she ran a scheme that allowed at least 2,685 immigrants to falsely list companies she ran as their U.S. employer in visas, including H-1Bs, according to the indictment. Huang received at least $2 million from the scheme.
“Considering that work visa holders get to stay here for years at a time and may eventually apply for a green card, it’s important to take the time for a thorough review,” said Jessica Vaughan, director of policy studies for the nonprofit Center for Immigration Studies, which backs restrictionist policies.
The Trump administration found other ways to limit the H-1B program. A rulemaking is currently pending that would prevent spouses of visas holders from being eligible to work in the U.S., rolling back a 2015 Obama administration change that said they could.
There have been indications that the Trump administration has mulled restricting the program even further. The McClatchy newspaper chain reported last year that the White House was considering stopping visa extensions entirely. “The idea is to create a sort of ‘self-deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” one anonymous source told McClatchy.
