Skilled Visa Denials Spiked in Late 2017, Report Finds
by Foster LLP, on News
Law360 (July 27, 2018, 5:45 PM EDT) — The Trump administration has denied or questioned more visas for highly skilled immigrant workers since President Donald Trump signed his "Buy American and Hire American" executive order last year, a policy report released Wednesday has found.
According to the nonpartisan National Foundation for American Policy, the number of denials of H-1B visa petitions, which are reserved for immigrants with at least a bachelor's degree working in specialty occupations, spiked at the end of 2017 following Trump's April 2017 order calling for a crackdown on abuse of the H-1B visa program.
According to the report, H-1B visa denials jumped by 41 percent, increasing from 15.9 percent in the third quarter of fiscal year 2017 to 22.4 percent in the fourth quarter. H-1B visas are capped at 65,000 per year, with an additional 20,000 H-1B visas reserved for immigrants with advanced degrees.
The report also found that U.S. Citizenship and Immigration Services is more likely to formally request additional information on H-1B petitions for Indian applicants than for applicants from other countries, citing data showing that 72 percent of Indian H-1B petitioners received a "request for evidence" in the fourth quarter of 2017, compared to 61 percent for H-1B petitioners from all other countries.
"The data document how the Trump administration is limiting the admission of high-skilled foreign nationals, even though every economist believes America would benefit from the entry of more foreign-born scientists and engineers," NFAP Executive Director Stuart Anderson said in a statement.
USCIS has implemented several new policies over the past year restricting legal immigration for highly skilled foreign professionals, despite Trump's proposal in January to transition to what he called a "merit-based" immigration system over a family-based one.
A recent USCIS policy tightened the requirements for foreign citizens living in the U.S. under the optional practical training program for F-1 student visa holders who majored in STEM, making it more difficult for those international students to obtain postgraduate temporary work authorization.
Under the new rules, STEM students in the optional practical training program must be based at their employer's work site in order to obtain the work authorization, threatening their abilities to work at staffing agencies or consulting firms that regularly send their employees to clients' offices.
And in two memos issued by USCIS in July, the government said that immigration officials could deny outright visa petitions they deem frivolous, father than issue a request for evidence or notice of intent to deny, and then immediately place rejected applicants in deportation proceedings if the denied petition leaves them out of status.
The requests and notices previously gave applicants an opportunity to correct deficiencies in their petitions, but under the new policy, officials can simply deny the bids at their discretion.
Immigration attorneys warn that those policies could cause upheaval in the business community, throwing a class of foreign professionals into the already crowded immigration court system.
According to the report, the increased denials and evidence requests for these foreign professionals are a reflection of these changes in the federal government's policies and practices, because companies petition for employees they believe are likely to qualify for the visa.
"The increase in denials and requests for evidence of even the most highly skilled applicants seeking permission to work in America indicates the Trump administration is interested in less immigration, not 'merit-based' immigration," the report says.
In addition to the increased denials of H-1B petitions, the report also detailed that the denial rate for L-1B visas, for intracompany transferees with "specialized knowledge," and L-1A visas for intracompany transferees who are executives and managers, increased between the first and the fourth quarters of 2017.
The L-1B denials increased by about a third during that period, while the L-1A denial rate increased by roughly two thirds, the report said.
–Additional reporting by Nicole Narea. Editing by Connor Relyea.