How Trump Officials Tried to end the H-1B Visa Program

For those interested in the difficulties that companies and individuals went through over the past 4 years in terms of getting and renewing H-1Bs, a good article has come out on Forbes Magazine and on its website (link here).

First, why are H-1Bs important and how do they help the US. According to the article:

Research has concluded high-skilled foreign nationals on H-1B temporary visas contribute to America in many ways, including by increasing productivity, which is essential to improving the standard of living. “When we aggregate at the national level, inflows of foreign STEM [science, technology, engineering and math] workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010,” according to economists Giovanni Peri (UC, Davis), Kevin Shih (RPI) and Chad Sparber (Colgate University). Research by economist Britta Glennon found rather than saving jobs, H-1B restrictions “have the unintended consequence of encouraging firms to offshore jobs abroad.”

Stuart Anderson, Forbes Magazine

The article then turns to the “memos” released by USCIS purportedly just “clarifying” existing standards. This includes the memo released on March 31, 2017 that rescinded the previous memo on Computer related positions, the memo on March 23, 2017 changing the standards and when and when not to issue RFE’s for H-1Bs and the July 17, 2017 memo revising the denial standards for H-1bs. According to the article:

“What the documents do not say is more important than what they say,” Jonathan Wasden, a partner with Wasden Banias LLC, said in an interview when the USCIS material became public in September 2019. “You see that the noncontroversial matters are all supported by citation to statute and regulation. However, their most controversial policies lack any such support. It appears that the agency made dramatic changes to H-1B policy without grounding those changes in any law. Attorneys have known this is happening in practice, but to see they don’t even attempt to create a facade of statutory support is shocking.

Stuart Anderson, Forbes Magazine

After these memos, another memo was released that basically stated that USCIS would no longer give deference to previously approved applications when adjudicating extensions or status. These changes lead to increased RFEs – the rate climbed from 17% in August of 2017 to 38% in September to 56% in December to 66% by November 2018. That is a huge increase and leads to delays for companies to get people here, delays for those seeking to renew applications and continue working, and hurts our economy.

In terms of the denial rates the article also discusses how those skyrocketed during the last administration – and how their argument that they were weeding out fraud does not hold water. All the above, in addition to other policies they pushed forward such as trying to reduce approvals for some cases to just one year, etc. were all aimed not at weeding out fraud (which does exist and should be weeded out, but is actually not as rampant as claimed) but at halting the use of the H-1B program and halting those immigrants from being able to work and live in the US. The whole idea was that it would open up more jobs for US workers, which, as shown via much research, is exactly the opposite of what happens when you close off immigration. It should be noted that many of these policies were ultimately overturned by the Courts because of the way they were pushed through without proper rule-making. However, there is still a lot of work that needs to be done to fix these systems and ensure that they are serving the purpose they were intended to serve – to help US employers and to spur the creation of more jobs for US workers.

Any one interested in what happened with a part of the immigration process during the last administration should read this whole article – it is very interesting.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Author: Adam Frank, Esquire

I am an immigration attorney with over 20 years of experience. I was graduated from Brandeis University undergrad in 1990 and then spent a year traveling around Central America. In 1991 I began attending the University of Baltimore School of Law and was graduated in 1994. I began working in Immigration Law in 1998 when I joined a small law firm and, in 2000 opened my own firm with my law partner Ed Leavy. Sadly, Ed passed away in 2011. I am still a partner in my own firm with my current partner Brendan Delaney. Our firm is Frank & Delaney Immigration Law, LLC.