According to a report by Reuters, the Trump administration has been making it significantly more onerous for skilled foreigners to work in the United States.  The report explains that the new administration has been challenging visa applications on a notably more frequent basis than at almost every point during the Obama Presidency.  A primary reason for the increased inspections of the H-1B visas is President Donald Trump, who has called for reform to the visa program.  Specifically, the President has asked that the visa program is altered so that it favors the highest paid workers, but has not followed through on any such reforms.

Recent data provided by the U.S. Citizenship and Immigration Services (USCIS) reveals that between January and August of 2017, the agency issued 85,000 requests for evidence for H-1B visa petitions. This comes as a 45 percent increase compared to the same period last year.  The data also highlighted that in the same period, H-1B visa petitions increased less than 3 percent.  Finally, this new information also found that the rate of requests for evidence (RFEs) issued in 2017 was at a significantly higher rate compared to during any point in the Obama era, except for the year of 2009.

This new data trend is likely to be perceived positively by Trump supporters who back the President’s uncompromising stance towards immigration.  Many of his followers claim that the presence of skilled foreign workers undermines the ability of the American worker by replacing them with underpaid employees from other countries.  In contrast, major tech companies, universities, and hospitals say otherwise.  Instead, they state the H-1B visas allow them to find candidates for extremely specialized jobs for which there are occasionally very few qualified Americans.

What is the purpose of the H-1B visa?

The purpose of the H-1B visa is to enable in general, foreign workers who have bachelor degrees or higher to work for up to three years at a time, in several different sectors of the economy. Typically, foreign workers tend to work in the areas of technology, healthcare, and of course, education.  In fact, the USCIS found that during 2016, Amazon, Google, Apple, Intel, Oracle, and Facebook were primary users of the H-1B visas.  The RFEs challenge the original reason for the visa application and contends that the evidence does not support approval of the H-1B petitions.  While the Obama administration did not issue as many requests for evidence as Trump’s, their numbers were also in a similar range.  Specifically, the Obama administration issued approximately 59,000 requests for evidence from January through August 2016.

For many years, immigration attorneys have criticized the challenges posed to the high-skilled employment visas.  However, immigration attorneys are saying they are witnessing a newfound trend in the Trump era.  In addition to issuing RFE’s more frequently, the new administration has also made it a point to target entry-level jobs offered to skilled foreigners.  However, attorneys do not agree with this, as they say, it is contrary to the laws that govern the H-1B visa, as it permits visa holders to take entry-level jobs.

Multiple attorneys are viewing this growth in the requests for evidence and focus on entry-level positions as a covert campaign lead by the Trump administration against the H-1B visa program. More specifically, many attorneys are saying that this is a covert campaign being run in the absence of public regulatory changes or Congressionally passed changes, which could be debated and decided publicly.

Terminating ambiguity

Partners HealthCare is one of the most well-known healthcare systems in Massachusetts. It includes, Massachusetts General Hospital and Brigham and Women’s Hospital, two prestigious teaching hospitals for Harvard Medical School.  Unfortunately, this year Partners has received more than 50 requests for Evidence’s from the USCIS.  This is a significant increase compared to last year, where the healthcare system only received less than 15 requests for evidence for a similar number of H-1B petitions.  These figures come from Partner’s immigration attorney, Anthony Pawelski.

In their request for evidence, the USCIS questioned the relationship between the hospital and the university, despite their applications including adequate proof of their non-profit status and affiliation.  This status came about through a 1948 agreement between Harvard Medical School and the hospitals.

It is not yet apparent how growth in the request for evidence will alter the number of visas distributed this year.  However, during the year of 2016, the USCIS authorized 87 percent of H-1B petitions.  Conversely, by June of this year, the agency had only approved 59 percent of H-1B petitions. However, this is not a complete statistic, as a majority of requests are processed towards the end of 2017.

Lawmakers from both the Democratic and Republican party have scrutinized H-1B visas for various reasons.  Many critics say they allow certain companies to use the program to find foreign candidates for junior level IT jobs and replace American workers.  To prevent this from happening, legislators from both the Republican and Democrat parties have introduced legislation this year to alter the use of the visa.

During April, Trump sponsored a review of the H-1B program aimed to ensure that the visas were being issued to the most skilled or highest paid applicants.  While the actual executive order did not make a change, it did guide several agencies to suggest reforms.  Director of government relations at the American branch of the Institute of Electrical and Electronics Engineers (IEEE), Russell Harrison commended Trump on this move.  In his comment, Harrison explained that many companies are misusing the H-1B visa program and that it was good the administration has become aware of this abuse and are moving to solve it.  Harrison’s group, the IEEE is not in favor of the H-1B program but is in favor of giving more high-skilled foreigners employment-based permanent residence.

After reviewing hundreds of request for evidence’s, the American Immigration Lawyers Association ( AILA) found that RFEs dealing with entry-level positions say one of two things.  The requests say that either the job is too complicated and thus demands a higher salary or that the job does not count as a specialty as noted in the guidelines of the H-1B program.

Increased requests come with an increased price

An entry-level position is a position that typically targets recent university graduates, who have little to no work experience.  Jobs in this category pay a “Level 1,” wage, which is described as the lowest of the four tiers.  The spokesperson of the USCIS says that a request for evidence is appropriate if they find that the salary does not match the duties of the position.  However, the data provided by the USCIS did not specify the occupations the requests challenged or the reason for the challenges.

Lawyers disagree with the purported reasoning of the USCIS, which is that specialty jobs cannot be entry-level.  In a counter-argument, lawyers refer to young doctors and engineers, who do not have much work experience, but they have spent several years learning technical skills.

While these requests for evidence can be found in all industries, a review by AILA revealed that those who were software developers and computer system analysts were contested more frequently than other positions.

Established companies in the Silicon Valley either chose not to comment or did not respond to a request for comment on the amount of requests for evidence that they had been receiving.  A request for evidence can significantly increase the legal fees that come with each H-1B visa, by almost fifty percent, many attorneys say.  Government associated fees for H-1B visas are notoriously high, running upwards of two thousand five hundred, dollars.  Employers who file multiple H-1B petitions each year can get discounts on attorneys fees due to the volume of cases and duplication of relevant work, and as such may pay two to three thousand dollars for H-1B cases.  Other employers who do not have such high volume or have complex petitions can pay much more than this attorneys fees on such cases and even more if they receive complicated RFEs, that often double or triple the work required from the attorneys.

An attorney with a prominent immigration firm, Berry Appelman and Leiden LLP, explained that one of the firm’s customers, a medium sized technology company, was given six requests for evidence’s from the USCIS, in one day. Additionally, the attorney, Jeffrey Gorsky, also said that between late 2015 and end of 2016, the company only received only one request for evidence on an H-1B visa petition.