Recognizing the Invisible Wall: Policy Changes to Restrict Legal Immigration

By Nam Douglass

Since 2017, numerous polices have limited legal immigration and constricted benefits to nonimmigrant visa holders, such as H-1Bs, and their families. These efforts intensified with the July 1, 2017 issuance of the “Buy American and Hire American" Executive Order aimed at protecting US workers.

The H1-B Hurdle

As of April 1, 2019, the H-1B visa program for temporary foreign workers in specialty occupations is subject to new rules modifying the lottery process and requiring employer registration.

The lottery is a result of US employers petitioning for more than the annually allotted number of H-1B visas. In fact, more than double the number of available visas have been submitted every year for the last five years.

The new lottery process is designed to give an advantage to persons eligible for the advanced degree exemption, meaning they hold a US master's degree or higher. USCIS estimates this will result in a 16 percent increase in the number of H-1B workers with graduate degrees from US colleges and universities.

The new electronic registration requirement that goes into effect in FY 2021 requires all employers to register online to participate in the lottery and only selected applicants will submit full H-1B petitions.

While USCIS believes this will make the H-1B process more efficient and cost-effective, it will not alleviate the limitations created by the numerical cap, the uncertainty of the lottery, and the hiring constraints imposed by the annual April 1 deadline.

The Requests for Evidence Barrier

Selection in the H-1B lottery is no sense of relief. The issuance of Requests for Evidence (RFEs) and denials of H-1B petitions over the last two years are at an all time high. In the 4th quarter of FY 2017, the RFE rate for H-1Bs reached 69 percnet as compared to 23 percent the previous quarter, and the denial rate rose from 16 percent to 22 percent. These rates are even higher for Indian citizens. During that same quarter, 72 percent of H-1B cases received RFEs compared to 61 percent for all others countries.

These challenges come in addition to the new employer requirements for H-1B workers at third-party work locations, requiring more evidentiary support such as work orders, and detailed information about the type and length of contractual services.

Also in 2017, USCIS rescinded its policy of giving deference to its own agency decisions when considering visa extensions. This has led to sudden denials for existing H-1B visa holders, leaving workers and businesses scrambling. Businesses and visa holders should be prepared to provide greater details about job duties, responsibilities, and work itineraries.

Consideration should also be given to H-1B alternatives such as O-1 and L-1 visas that have no numerical limit, year-round availability, fewer government fees, and ongoing premium processing for faster government turnaround. The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business, or athletics, and the L-1 visa is for overseas businesses with a qualifying US office or those seeking to start or acquire a US office.

North Carolina's highly-educated population, billion-dollar R&D industry, and numerous Fortune 500 and 1000 headquarter make both these nonimmigrant visas viable options.

H-4 Spouses Walled off from Work

On February 20, 2019, a proposal was sent to the White House Office of Management and Budget to end work authorization for eligible H-4 spouses. These workers add about $5.5 billion to the U.S. economy to include $1.9 billion in federal tax revenue and $530 million in state and local tax revenue.

This work authorization eases the strain on families whose H-1B workers face long delays in receiving a green card given the excessive back-logs. As of December 25, 2017, of the approximately 90,000 USCIS approved employment applications for H-4 visa holders, almost 85,000 were for women, and 84,000 for Indian nationals.

Interviews Now Required

Another two bricks in the wall are new policies requiring expanded international and domestic interviews. At consulates abroad the Interview Waiver Program designed to streamline the visa process at high volume consulates, such as India and China, was suspended with limited eligibility.

In the US, since October 2017, all employment-based green card applicants, including spouses and children, are now required to attend in-person interviews. This has increased the burden on USCIS as well as applicants and businesses whom now require legal representation for the interview process.

For nonimmigrant visa holders and US businesses, these policies have significant impact from the sudden loss of employees and business contracts to uncertainty in international travel and processing delays. Those affected should seek expert advice from a reputable immigration attorney on the best strategies to navigate this encroaching invisible wall.

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Nam Douglass is the Associate Attorney at Gardner Law PLLC, an immigration law firm in Raleigh. She handles business immigration cases as well as family-based petitions. Contact at 919-987-2101 or nam@gardnerlawpllc.com.