After another busy H-1B cap season, will the Trump administration chart a new course on high-skilled immigration?
With another busy H-1B cap filing season completed, U.S. companies are reminded that current policies toward high-skilled immigration remain both challenging and unpredictable. Recent changes this cap season continue to demonstrate a hard line toward the H-1B visa program. Yet, in recent months there has been talk of a possible softening of the administration’s position on high-skilled immigration.
President Trump and his advisors have prompted the speculation by sending mixed messages, frequently arguing that abuse of the H-1B program and use of foreign workers undercut American jobs, but more recently suggesting that the economy demands more skilled labor. During the State of the Union address, Trump said that he wanted legal immigrants to come to the U.S. “in the largest numbers ever.” Asked the next day to clarify this statement, he said that American companies moving production back to the U.S. will need to fill those jobs. Moreover, during a tour of the southern border in January to promote funding for additional border wall construction, Trump tweeted that reforms were in the works that would bring “simplicity and certainty” to H-1B workers and he also suggested expanded paths to citizenship. Furthermore, media reports following these comments have indicated1 that Trump’s senior advisor and son-in-law, Jared Kushner, is spearheading talks with businesses aimed at reforming corporate immigration and possibly increasing the number of foreign workers.
On April 5, at the end of the first week of filing, H-1B petitions once again exceeded the caps—for the seventh year in a row. At a time when the need for the H-1B cap to be raised is more apparent than ever, is an era of more business-friendly immigration policy about to begin? While businesses certainly hope this is the case, let’s look at the record.
In the past two years, policy changes have made the H-1B category more cumbersome and less predictable. Since January alone, U.S. Citizenship and Immigration Services pushed through a regulation that alters the H-1B cap selection process, introduced new biometrics procedures for H-1B dependents, suspended premium processing for many cap cases until June or later, and unveiled a data hub that will put employers’ use of H-1B visas within public purview. Other changes include tightening standards for H-1B “specialty occupation” eligibility, increasing anti-fraud investigations of H-1B employers, sharing information among government agencies about H-1B employers, expanding adjudicators’ discretion to deny petitions outright without first requesting additional evidence, raising the burden of proof for nonimmigrants (including H-1B workers) who seek to extend their visas, and requiring additional documentation for H-1B third-party placements.
The result of these policies is in the numbers. Approval rates declined significantly for H-1B visas, according to the most recent statistics by USCIS.2 H-1B approvals, which exceeded 95% in 2015, fell to 84.5% in 2018 and further sank to 75% in the first quarter of fiscal year 2019. The number of requests for evidence, issued in less than 25% of H-1B cases in 2015, rose to 38% in 2018 and 60% in the first quarter of fiscal 2019. Approvals of H-1B cases that were subject to RFEs also dropped more than 20 percentage points, from an 83.2% approval rate in fiscal 2015 to 62.3% in fiscal 2018.
One closely watched litmus test of the administration’s position on high-skilled immigration is the “H-4 EAD rule,” which allows certain H-4 spouses of H-1B workers to obtain employment authorization to work legally in the U.S. For some time, the Department of Homeland Security has indicated that it plans to rescind this Obama-era rule but has repeatedly delayed issuing a new regulation. Immigration observers have said that if the administration intends to change policy direction, it might rethink rescinding this popular regulation, which has benefitted about 100,000 individuals, mostly college-educated women who are spouses of high-skilled workers from India. In late February, however, the agency signaled that it has no intention of changing course, sending the proposal to the Office of Management and Budget for review – the last step before a proposed regulation is officially published. Then, on April 1, DHS confirmed in a court filing that a regulation to remove H-4 spouses from those eligible for employment authorization is “expected to shortly be issued.” A rescission rule is imminent.
And now, in an apparent effort to further the administration’s restrictive agenda, a shake-up in the leadership ranks at DHS is underway. Vowing to take the agency in a “tougher direction,” Trump last week withdrew the nomination of Ronald Vitiello for the role of director of Immigration and Customs Enforcement. (Vitiello had been serving as acting director.) Then, over the weekend, DHS Secretary Kirstjen Nielsen resigned. The administration is reportedly considering the removal of other key DHS leaders, including Lee Francis Cissna, director of USCIS.
should U.S. companies make of recent statements that conflict with the
administration’s track record? While Trump and his advisors may be opening up a
new debate and consulting U.S. companies in the decision-making process, there
is currently no evidence that more welcoming policies are on the way. The
policies of the past two years have purposefully targeted high-skilled
immigrants and the employers who need them. Actions speak louder than
words, so until the administration takes concrete steps in a new direction,
U.S. companies should expect more of the same.
Susan Wehrer is a Partner in the Walnut Creek office of Berry Appleman & Leiden LLP.
1 “Jared Kushner privately working on reshaping legal immigration,” McClatchy, Feb. 20, 2019,https://www.mcclatchydc.com/news/politics-government/white-house/article226462025.html
2 Immigration and Citizenship Data, U.S. Citizenship and Immigration Services, https://www.uscis.gov/tools/reports-studies/immigration-forms-data
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