H1-B Challenges Causing Headaches

As a candidate for president, Donald Trump often talked about making drastic changes to the nation’s immigration system if he won, but is this really what he had in mind?

Recently, employers have been noticing an uptick in the number of challenges they are receiving regarding  H1-B visa applications, according to a new report on Bloomberg.

According to Joshua Brustein’s piece, employers began noticing this summer that U.S. Citizenship and Immigration Services was challenging a large number of H-1B applications:

Cases that would have sailed through the approval process in earlier years ground to a halt under requests for new paperwork. The number of challenges — officially known as “requests for evidence” or RFEs — are up 44 percent compared to last year, according to statistics from USCIS. The percentage of H-1B applications that have resulted in RFEs this year are at the highest level they’ve been since 2009, and by absolute number are considerably higher than any year for which the agency provided statistics.

Brustein says the H-1B program is controversial largely because IT firms based in India have used it to hire for rote computer programming jobs: “These firms, like Infosys Ltd. and Tata Consultancy Services Ltd., have been working to reduce their reliance on the program, in anticipation of a less receptive political landscape. The overall number of H-1B applications dropped this year for the first time in five years. The skeptical eye the government is taking to applications has extended to all types of employers, according to immigration lawyers. Many are rethinking their own use of H-1B as a result.”

 It’s unclear how many applications are actually being rejected, Brustein acknowledges. But even though Silicon Valley sees the H-1B program as one of its top political priorities, this campaign of reform by red tape has avoided the frantic political fights surrounding other aspects of immigration, like the proposed travel ban or the cancellation of DACA, a program for those who came to the country as undocumented children, Brustein says:

After the recent terrorist attack in New York, Trump called for the elimination of another visa lottery program – the Diversity Visa Lottery – saying immigration should be merit-based. This mirrors past calls his administration has made to eliminate the H-1B lottery as a way to punish those who use it improperly.

Instead, says Peter Roberts, an immigration lawyer whose clients include large multinationals and startups, the administration is punishing everyone. He said many of this year’s challenges were “beyond ridiculous, trumped-up requests — no pun intended — issued either without legal basis or making no sense from a common sense standpoint,” and questioned whether they’d stand up. “How do you change the way we live? You can change the laws, or you can change the way we interpret them,” he said. “This is the latter.”

“We’re entering a new era,” adds Emily Neumann, an immigration lawyer in Houston who has been practicing for 12 years. “There’s a lot more questioning, it’s very burdensome.” She told Brustein that in past years she’s counted on 90 percent of her petitions being approved by Oct. 1 in years past. This year, only 20 percent of the applications have been processed. Neumann predicts she’ll still have many unresolved cases by the time next year’s lottery happens in April 2018.

According to Brustein’s piece, USCIS declined an interview request, sending a written statement instead. “USCIS officers use currently existing policy that interprets existing statutory and regulatory requirements to evaluate petitions and make an eligibility determination,” it said. “As done in the past, officers evaluate each petition on a case-by-case basis to determine if a petition qualifies for the benefit being requested.”

Is your  organization experiencing similar delays and challenges to its H1-B visa applications? If so, you can take some small solace in knowing that you’re not alone.