Make the American Workforce American Again

In April, the president signed the “Buy American and Hire American” executive order, which directed the departments of state, justice, labor, and homeland security — which oversees the U.S. Citizenship and Immigration Services — to “suggest reforms” that would ensure “H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The order makes no immediate changes to the work visa program, but instructs the federal agencies to “propose new rules and issue new guidance,” and to supersede existing guidance “if appropriate.”

The H-1B visa program is one of the most employment visas that employers in the United States use most heavily. The program allows U.S. companies to employ foreign workers temporarily in specialty occupations, which include jobs in technology, engineering, science, architecture, accounting, and business, among others. Many of the most notable and profitable tech companies, including Microsoft, Google, and Apple, hire large numbers of H-1B workers. Each year, 85,000 tH-1Bs are available to companies, according to a ceiling set by Congress. (Of those visas, 65,000 are for people who have earned at least a bachelor’s degree in a specialized field of study, and 20,000 for people who hold a master’s or higher degree issued by a U.S. college or university.) The visa remains valid for three years, with extensions available for up to six years, but H-1B holders who have begun the employment-based green-card process can renew their visas indefinitely under certain circumstances. Although it is difficult to determine exactly how many people in the United States now are here on H-1B visas, analysts estimate that there are about 650,000 to 900,000 recipients.

USCIS and DOS officials are scrutinizing H-1B visa petitions more closely, and have been denying the petitions and H-1B visa applications more frequently since the “Buy American and Hire American” executive order was issued. Foreign nationals already in the United States whose employers wish to extend their visas also are facing challenges. From January to August 2017, the number of Requests for Evidence USCIS issued on H-1Bs petitions increased by 44 percent compared to the same period last year. Furthermore, 86 percent of H-1B petitions were approved in October 2017 and 82 percent were approved in November 2017. By comparison, 93 percent were approved in October 2016, and 92 percent were approved in November 2016. Ben Johnson, the executive director of the American Immigration Lawyers Association, said, “The goal of the administration seems to be to grind the process to a halt, or slow it down so much that they achieve a reduction in legal immigration through implementation rather legislation.”

Another recent change to employment-based petitions is the newly required interview. As of October 1, 2017, USCIS began conducting in-person interviews of applicants who apply to adjust their status to lawful permanent resident based on an approved immigrant petition (Form I-140). Visa holders who are derivative beneficiaries of the principal (that is, spouse and children who are 21 years old), refugees, or asylees also have been required to undergo in-person interviews when they apply for lawful permanent residence.

Although the in-person interview is not a new procedure, USCIS has been waiving the interview requirement for nearly all employment-based adjustment of status applications because the interviews tended to cause a significant backlog in case processing and waste valuable resources — personnel, time, and funding. According to the USCIS Office of Public Engagement, which held a teleconference on October 11, 2017, called “Expanded Use of In-Person Interviews,” applicants for adjustment of status should expect significantly longer processing times as the USCIS begins scheduling applicants and their derivative beneficiaries for interviews.

As an employment based immigration firm, we see that our clients have faced a heightened number of H-1B RFEs as well as scheduled interviews for their adjustment of status applications. These policy changes have and will continue to cause significant disruption and hardship for many people. Employers who wish to hire employees through the H-1B program now may be forced to hire unqualified workers or wait for indefinite periods for their employees to receive work authorization. And now, when they are required to go to USCIS interviews, both the principal applicant and his or her spouse must take at least half a day off from their jobs, and children will lose at least half a day of school.

What BAHA fails to take into account, in addition to the issues raised above, is that people who enter the United States through any employment-based nonimmigrant visa already have undergone extensive vetting in order to secure the visa and enter the country. Requiring such people to undergo further scrutiny and extensive waiting periods will do little, if anything, to detect and prevent fraud or criminal activity. The expanded use of in-person interviews and scrutiny of the H-1B program only will serve to stretch beyond capacity the human capital, resources, and finances of an already overwhelmed and under-supported immigration system.

About the Author
Michael Wildes is Managing Partner of Wildes & Weinberg, a leading immigration law firm in the U.S. Wildes is a former Federal Prosecutor with the US Attorney's Office who has testified on Capitol Hill in connection with anti-terrorism legislation. He is Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York, where he teaches immigration law and serves as personal immigration lawyer to Melania Trump, Pele and Jean-Georges.
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