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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