The Trump administration is bringing a new level of scrutiny to a temporary work visa popular among technology firms, costing employers more time and money as they seek to bring foreign workers to the United States.
From January to August 2017, the U.S. Citizenship and Immigration Services sent 85,265 requests for evidence in response to H-1B visa applications, a 45 percent increase compared to the same period a year earlier, agency data show. Immigration lawyers say these requests — made when an application is missing required documents or the agency determines it needs more proof to decide if a worker is eligible for the visa — could even discourage companies and individuals from seeking an H-1B visa in the first place.
“It’s the most nonvisible and yet hugely impactful way to reach people, and it’s freaking people out,” said Cynthia Lange, managing partner for the Northern California practice of Fragomen, an international immigration law firm that works with some of the world’s largest tech firms.
But administration officials say the scrutiny is needed to ensure the integrity of the controversial visa program, which critics say has cost American jobs.
Overall, about 27 percent of all H-1B visa applications USCIS received in the first eight months of 2017 got a request for evidence.
For the same eight-month period of the prior year, under the Obama administration, about 19 percent of all H-1B visa applications USCIS received got a request for evidence.
Some applications received in both years may have received more than one request for evidence.
Answering requests for evidence increases the time employers spend on H-1B applications and legal costs for attorneys’ guidance in obtaining and submitting the additional information.
The increased scrutiny of H-1B visa applications could make some companies — especially small businesses with tighter budgets — think twice about hiring foreign workers. But with technology making it easier for employees to work remotely, others are looking at opening offices in Canada, Mexico and other countries, said Tahmina Watson, a Seattle immigration lawyer.
“People and businesses don’t wait for the government,” said Watson, who works with small- to medium-sized businesses. “Businesses will continue conducting business. They’ll just find creative ways of doing it.”
As Apple, Google and other tech firms expand globally, companies also have the option to push jobs overseas, lawyers said.
Silicon Valley tech firms and other employers argue they need more H-1B visas, which are limited to 85,000 annually, to hire talent they can’t find in the United States. But some lawmakers and unions have raised concerns that companies are using the visa program to replace American workers with cheaper labor.
Indian outsourcing firms such as Infosys, WiPro and Tech Mahindra that rely heavily on H-1B visas paid lower average salaries in fiscal year 2016 compared to U.S. tech firms such as Google, Apple, Intel and Microsoft, data from USCIS show. The fiscal year 2016 data were the latest such figures immediately available. Silicon Valley tech firms also contract with these outsourcing companies, though, which means they can benefit by relying on these contractors with H-1B visas for certain tasks.
While bills to overhaul the visa program haven’t become law yet, USCIS is asking employers for more proof to determine if a worker is eligible for an H-1B visa.
“Everybody that uses a lot of visa workers knew that this was coming,” said Leon Rodriguez, the former director of USCIS. “The handwriting was on the wall frankly before President Trump took office.”
But some lawyers said they felt like a different standard was being applied, compared to previous years. Applications they expected would get approval before Trump took office are either being challenged or denied.
“In the eyes of some employers, there appears to be a perception that there is a political motivation behind this wave of RFEs,” said Justin Storch, the Council for Global Immigration’s manager of agency liaison, who has talked to the group’s members about dealing with requests for evidence.
In April, the president signed an executive order called “Buy American, Hire American” that asked federal agencies to suggest ways “to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
This newspaper reached out to more than a dozen companies that relied heavily on H-1B visas, but they declined to comment, didn’t respond or suggested talking to an immigration lawyer. Concerned about retaliation and the political environment, workers who received a request for evidence were also hesitant to talk publicly.
USCIS spokeswoman Sharon Rummery pointed to a past statement by the agency’s Director Francis Cissna, who said the rise in requests for evidence reflected the agency’s “commitment to protect the integrity of the immigration system.”
The agency also cited a different set of data that showed 21 percent of H-1B applications received a request for evidence from October 2016 to September 2017 before they reached a point of denial or approval, a 1 percent increase compared to the previous fiscal year. About 93 percent of those applications were approved. When asked for the exact numbers instead of just percentages, Rummery said they were not immediately available.
One common type of request for evidence that lawyers said they’ve seen challenges whether a worker being paid an entry “level 1” wage would qualify as an H-1B “specialty occupation.” H-1B visas are for jobs that are so complex or unique that they require at least a bachelor’s degree or equivalent.
Although level 1 wages are the lowest-paid of four tiers, the level 1 salaries can vary widely depending on the area and job.
San Jose immigration lawyer Arjun Verma, who works with mid-sized and smaller companies, said he thinks more employers could file H-1B applications for jobs with higher salaries this year to try to avoid the level 1 wage being challenged.
And parents might also start questioning whether sending their children to study in the United States is worth the investment if getting a job here afterward becomes too difficult, he said.
Verma said some of his clients are thinking about whether hiring skilled foreign workers through H-1B visas this year is even worth the financial risk.
“For a lot of these employers,” he said, “it’s just money down the drain.”
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Good. H1-B visas should be cut back to almost 0. I’ve been reading about ancient Rome, and one of the reasons for the crumbling of the empire was that slaves were imported to Rome to work because they were cheaper than hiring citizens. Slaves brought their cultures and beliefs with them, degrading the culture that made Rome the world power. Sound familiar?
No doubt. A tour guide in London said that during the 400 years that Rome ruled England, the number one export from London was slaves.
God got even with Rome,,,,within those ranks of slaves were Christians, who conquered Rome not with the sword, but with love, truth and reason. Rome like the Israeli’s earlier who found their own promised land, then lost it to the passion twisted and promoted cultures of the Philistines whose men dressed and painted themselves as women, sacrificed their firstborn to the fire God Dagan, then married foreign women and preferred the Temple harlots to their own clean women within the Temple of their creator. Those who do not learn from the lessons of history are indeed, doomed to repeat them. The American Indiana Jones has entered the Secular socialist Temple of doom. What other result did you expect?
Great. Hell i’d just like to eliminate them entirely!
I know several Indian families (all nice people). What the American companies are doing is hiring these H-1B, people from all over the world, working these H-1B holders to death (seven days a week for long hours) and paying them much less than an American worker. Bravo Trump for going after the H-1B program. Also, another biased article from the San Jose Mercury News. I think the San Jose Mercury News should move to Cuba. You clowns aren’t even reporters with your bias, against our Country, you communists!
Claiming they cannot hire such talent within the USA is a lie,,,,claiming they cannot hire them for the same depressed wages and benefits as H1-B visa holders is the truth. It’s all about the bottom line which is why Trump needs to make it an economic disadvantage and even financially punishable for companies to hire them above LEGAL taxpaying Americans. American Companies will only find more creative ways to avoid responsibility and benefit people and countries overseas, when THE PEOPLE of the American government are less creative and more irresponsible as we were the past 8 years of job loss and wealth redistribution on an international scale., Another reason they fear Trump who himself has played their game and won. I have worked with these so-called highly talented H1-B high tech overseas imported people from India, who arrive with the equivalence of a mail order diploma, and then get to be trained by the LEGAL American skilled workers whose job they subsequently steal, for a lot less pay and benefits demanded.
Quite a truth, inluminatuo. If it became law, as it should be, that it is equal pay for all doing the same work, I think we would see quite a difference in the hiring policies of these Companies. If they do not hire within our Country, at that point, at least they would want to get the most for their dollars spent, and hire only those with qualifying skills. Not entry level, less educated, foreign Illegals, but qualified only people to fill the positions. We have more than sufficient, well educated, qualified people for most any position, we just need to be sure that all of them have a chance at positions, preferable to foreign workers.
With how many colleges are cranking out useless snowflake idiot SJW graduates, maybe they CAN’T hire Americans to do it, as the colleges are not creating them?!
Can’t find Americans to fill the positions? All the while they claim Americans graduating can’t find work to pay back student loans??? Wonder WHY they can’t find work: It’s all been outsourced.
The tech companies pay the H1B immigrants half what they would have to pay an American, a very powerful motivation to screw everyone.
You can’t find talent locally? After dumbing down the school system what do you expect? If we turned that around right now it would take years to have an effect. Congratulations, you got what you were striving for. Now live with it.
Maybe that’s why so many colleges are PUSHING SJW courses as being mandatory, to KEEP THE STUDENT graduates so damn dumb, we HAVE TO keep importing labor…
I’m the kind of guy who wants it all. America First. Make America Great Again.
Longer term, we need to improve our schools so our graduates aren’t at such a disadvantage intellectually to foreigners.
Level the monetary playing field so American graduates aren’t at an economic disadvantage.
Companies must first PROVE there is no American available to do the job before hiring a foreigner. Prove each hire. Fines for each fraudulent or lazy foreign hire. But very easy to do once all qualified American applicants are hired.
But keep enough of the H1B that we suck all the skilled technicians from other countries. The H1B gives the USA a clear advantage, like a secret weapon. Remember we picked up Einstein and a lot of German scientists using a similar process. If they can’t come here, they will create their own versions of Silicon Valley in their own countries. Or more realistically, in China, as they start up their own H1B program to take over the world.
I have nothing against legal foreigners, or them having jobs. But I do have a problem with Americans treated as second class citizens in our own country. Level it up and get it working right for everyone.
Prob is, we see it time and time again, companies put “hiring” ads in local rags FEW IF ANY PEOPLE read, and leave them there for 2-3 weeks, then say “well we did our due diligence and didn’t get enough LOCALS to try and become hired, so we need to import our work force..
Sorry, DrGadget, but allowing any H1b visas means the continued drain on all USA created Intellectual Property which is being rapidly funneled out via the Internet to the home nations of these “employees”. Until we have real full wage employment of ALL our STEM trained Citizens, we don’t have any need for aliens working in our high tech industries.
Plus with how often we hear about these companies having their tech STOLEN BY Foreigners, how smart is it to KEEP HIRING foreigners?
Exactly what should be happening to prevent the serious abuse of the H1b program which has been occurring for years. When you see any job “advertised” and the ad includes the phrase “or foreign equivalent” in the educational requirement OR the phrase “or 3 years experience in the job offered” in the work experience requirements; the ad is being placed by a company to allow them to renew the H1b of a foreign national FOR 6 MORE YEARS!!! We should end the program tomorrow, no more H1b visas issued, no more renewals of H1b visas, and as the existing ones expire the holders must exit the USA since their permission to be in the USA has expired. Even with these changes, it’ll take years for the damage already done to STEM employment of USA Citizens to be repaired. At least we could get it well underway by the end of President trump’s second term.
Meaning that the company’s high-muckys are freaking-out as they can’t take commission from each of their hirees….