US Citizenship & Immigration Services (USCIS), under the leadership of the Trump administration, has been challenging a significant number of visa applications for skilled workers since President Trump vowed to investigate the “fraud and abuse” of the H-1B visa program by American-based companies this past April. Although neither the Trump administration nor Congress have instituted any changes to the H-1B program, data provided by USCIS reveals that the agency has issued 85,000 challenges, or “requests for evidence” (RFE’s), regarding H-1B visa petitions between January 1st and August 31st of this year. This is a forty-five percent increase since the same period of time last year. These RFE’s have also been issued at a rate greater than any point during the Obama administration, apart from 2009. RFE's can delay cases by months, and often interfere with hiring plans and business operations for American companies.
The H-1B visa is for individuals holding specialty occupations. It allows foreign workers who hold a bachelor’s degree (or equivalent) or a higher degree to work in the US for three years at a time within any field, but it is predominately used in technology, healthcare, and educational industries. Last year, renowned companies such as Microsoft, Amazon, Google, Apple, Intel, Oracle, and Facebook were some of the top users of the H-1B visa, according to USCIS. The H-1B visa, however, is considered controversial by some who feel that these visa holders replace American workers with foreign workers who are willing to be paid less. This April, the Department of Homeland Security stated that the “H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”
The Trump administration’s heightened scrutiny of the H-1B visa program, together with other policy changes such as Trump’s travel ban as well as the general hostile climate that many immigrants are facing, have convinced foreign nationals from countries such as India that they are no longer welcome in the US. Since President Trump’s election, the number of Indian-born US residents, many of whom are scientists and engineers, looking for jobs back in India has dramatically increased. Four out of ten US colleges claim that they have noticed a steep drop in international applicants, especially those from India and China. The number of individuals applying for the H-1B visa has also dropped from 236,000 last year to 199,000, according to the US government. “Some people are moving out of the country, taking valuable skills with them,” attorney Brent Renison tells Foreign Policy. “Some people are choosing not to come. If this persists, we’re going to lose a lot of the foreign students we educate.”
With the increase in RFE’s for H-1B petitions, many immigration attorneys have noticed a new pattern. There is an increase in challenges with a primary focus on entry-level jobs. The RFE’s have claimed that the salary should be higher because the job is so complex, or that the job is simply not a “specialty occupation,” according to a review of hundreds of RFE's by the American Immigration Lawyers Association (AILA). Attorneys claim that these RFE’s violate the laws governing H-1B visas, which allows visa holders to accept entry-level jobs that are complex enough to require a degree and regardless of the seniority of the position. Others view this increase as a “stealth campaign” by the administration in the absence of regulatory changes from Congress. “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,” New York-based immigration attorney Cyrus Mehta tells Reuters.
In addition to challenging the seniority of the positions, the RFE’s question other aspects of the H-1B program. For example, Partners HealthCare, which includes Massachusetts General Hospital and Brigham and Women’s Hospital, has received more than fifty RFE's from USCIS this year. In these RFE's, USCIS challenged a connection between the two prestigious hospitals and Harvard Medical School, despite an agreement between the organizations that dates to 1948. Last year the company received fifteen RFE's. “They’re doing anything they can to delay the processing and adjudications and in their mind close any perceived loopholes,” Anthony Pawelski, the immigration attorney for Partners Healthcare, says.
Robert C. Langston, a USCIS spokesman, has not directly addressed the recent increase in RFE's, but states in an email that the agency is simply applying “currently existing policy that interprets existing statutory and regulatory requirements to evaluate petitions.” Russell Harrison, director of government relations at IEEE-USA, the American branch of the Institute of Electrical and Electronics Engineers, welcomes the increased scrutiny. “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,” he says.
While it is still unclear as to how this increase in RFE's will ultimately affect the number of petitions approved, RFE's alone can still have a dramatic effect. They cost petitioners more in legal fees, and the hassle may discourage employers from hiring foreign nationals altogether. The repercussions can trickle down to students, who may believe they cannot get a job after graduation, and therefore do not enroll in US educational institutions. All that, combined with President Trump’s anti-immigrant rhetoric, is dissuading some. “The platform he got elected on, that hatred, denigrating other religions, it wasn’t making America great again and uplift the world,” Vivek Wadhwa, a distinguished fellow at Carnegie Mellon University, says. “It’s ‘We’re going to make America great’ at the cost to the rest of the world. We’re doing long-term damage here.”