Joshua Brustein. Bloomberg, November 6, 2017
Donald Trump came into office promising a restrictive new approach to immigration and there has been little question about his intention to follow through — with one seeming exception. Despite its enthusiastic rhetoric about the H-1B program, which provides temporary visas to high-skilled workers, the administration failed to make significant changes in time to impact the program’s annual lottery this April, leaving some who had anticipated action fuming. It has also declined to take up any of the legislative proposals for H-1B overhaul.
But a crackdown has been in the works, albeit more quietly. Starting this summer, employers began noticing that U.S. Citizenship and Immigration Services was challenging an unusually large number of H-1B applications. Cases that would have sailed through the approval process in earlier years ground to a halt under requests for new paperwork. The number of challenges — officially known as “requests for evidence” or RFEs — are up 44 percent compared to last year, according to statistics from USCIS. The percentage of H-1B applications that have resulted in RFEs this year are at the highest level they’ve been since 2009, and by absolute number are considerably higher than any year for which the agency provided statistics.
The H-1B program is controversial largely because IT firms based in India have used it to hire for rote computer programming jobs. These firms, like Infosys Ltd. and Tata Consultancy Services Ltd., have been working to reduce their reliance on the program, in anticipation of a less receptive political landscape. The overall number of H-1B applications dropped this year for the first time in five years. The skeptical eye the government is taking to applications has extended to all types of employers, according to immigration lawyers. Many are rethinking their own use of H-1B as a result.
Even though Silicon Valley sees the H-1B program as one of its top political priorities, this campaign of reform by red tape has avoided the frantic political fights surrounding other aspects of immigration, like the proposed travel ban or the cancellation of DACA, a program for those who came to the country as undocumented children. After the recent terrorist attack in New York, Trump called for the elimination of another visa lottery program – the Diversity Visa Lottery – saying immigration should be merit-based. This mirrors past calls his administration has made to eliminate the H-1B lottery as a way to punish those who use it improperly.
Instead, says Peter Roberts, an immigration lawyer whose clients include large multinationals and startups, the administration is punishing everyone. He said many of this year’s challenges were “beyond ridiculous, trumped-up requests — no pun intended — issued either without legal basis or making no sense from a common sense standpoint,” and questioned whether they’d stand up. “How do you change the way we live? You can change the laws, or you can change the way we interpret them,” he said. “This is the latter.”
There are ample signs that the Trump administration has a broader overhaul in mind. It staffed the USCIS with those who worked for Republican Senator Chuck Grassley of Iowa, a longtime critic of H-1B visas who in January proposed scrapping the H-1B lottery altogether in favor of a system prioritizing higher-paid jobs. A spokesperson for USCIS says that plan is still being considered. In April, Trump issued an executive order asking federal agencies to increase their scrutiny of the program. In a briefing with reporters at the time, a senior administration official floated the idea that administrative steps like raising application fees could also serve to reshape the program without the need for new laws or regulations.