Obtaining H-1B visas — temporary work visas for highly skilled foreign workers such as physicians and technology specialists — has become increasingly difficult since the US Citizenship and Immigration Services began implementing President Trump’s April 2017 “Buy American and Hire American” executive order. And staffing firms and their clients now also report problems with keeping the visas as well as decision delays.
“There has been significantly increased scrutiny,” said Mark Roberts, CEO of TechServe Alliance, which serves as the national trade association of the IT and engineering staffing and solution industry. This includes new standards being applied to adjudications, and changes to a range of policies that are not in the form of regulations.
The 2017 order rescinded a 14-year-old policy in which prior adjudications of H-1B visas were given “deference” when, absent a change in underlying facts, the US Citizenship and Immigration Services routinely deferred to the prior decision when considering new petitions from existing visa holders. “Absent new facts or a good reason, the prior adjudication would be looked to for subsequent adjudication,” Roberts explains, but that is no longer the case.
The USCIS has been issuing requests for evidence, or RFEs, for H-1Bs at “unprecedented rates,” Roberts told Staffing Industry Analysts; he is also hearing about demands for second rounds of RFEs. Meanwhile, the denial rate for initial H-1B petitions has jumped, according to the National Foundation for American Policy, up from 6% in fiscal year 2015 to 32% in the current fiscal year 2019.
There is also anecdotal evidence of USCIS revoking previously issued visas, although official numbers are not available.
Revoking H-1Bs was previously “virtually unheard of” but fits with the overall pattern of “no deference,” according to Roberts. “If you are not going to grant deference to a prior adjudication, it’s just yet another step in the continuum to just say, ‘Why not look at whether it was properly granted in the first place,’” he said. “And that’s where the revocations come in.”
Ronald Klasko is chairman of the American Immigration Lawyers Association’s litigation task force, and also managing partner at Klasko Immigration Law Partners in Philadelphia. His task force has heard of H-1B revocations from a number its members but is not sure of the size of the problem. There have been a number of cases — “probably several figures” — where members were either in the middle of approvals when they received notices to revoke, or instances where they filed for an extension and received a notice to revoke the initial one. His organization is monitoring the issue and is still undecided whether to address the revocations as “major national issue.”
The law allows for the immigration service to revoke and approve petitions when what is called “gross error” exists, Klasko explains. However, USCIS cannot legally revoke visas simply because it is now more restrictive than it was when the visa was issued, and the application no longer meets the current standard.
“It’s not appropriate, and we think that is the kind of case that should be overturned if it is challenged in federal court,” Klasko said. “And we are urging people who have those kinds of things to challenge it in federal court.”
Another “hot area” is “unprecedented delays,” said Klasko — often 100% to 200% longer than they were even a year ago. “A lot of it appears to be intentional, and there have been a number of congressional inquiries into this and obviously employers are very concerned if it is taking two to three times as long as it did before,” he said.
Klasko recommends to legislative advocacy and appealing to congress, as well as filing a “mandamus lawsuit,” in federal court, which directs the government to perform a duty owed to the plaintiff, namely, act on the pending application. “They can approve, or they can deny, but they can’t simply not decide,” he says. “Almost always, when you do that, the end result is that the immigration service will decide the case one way or the other.”
On the bright side, contingent workforce program managers can take steps to better position themselves and help their staffing providers. Roberts suggests they “really partner with their staffing vendor.” Companies can be more forthcoming with submitting client letters and other paperwork. Ongoing communication will also help. “I think a lot of clients have evolved and have understood this is part of the game, part of the requirements,” he said. “It’s just a different environment and these are challenges that are faced by clients and staffing firms together.”
The low unemployment rate and shortages of skilled talent in some fields means worker immigration will remain a concern for program managers going forward. “It’s an ongoing problem that we continue to work on, but unfortunately one that is not going away anytime soon,” Roberts said.