New Evidence USCIS Policies Increased Denials Of H-1B Visas

At the same time the Trump administration has launched a trade war premised, in part, on worry that China will pass the U.S. in the technologies of the future, Trump officials are guaranteeing America will not have the talent to produce such technologies by blocking the entry of foreign-born scientists and engineers. New data show that in 2017, U.S. Citizenship and Immigration Services (USCIS) denied many more H-1B petitions and issued numerous costly Requests for Evidence to stop highly educated foreign nationals from working in America.

“Soon after Donald Trump issued the ‘Buy American and Hire American’ presidential executive order on April 18, 2017, U.S. Citizenship and Immigration Services started to increase both the Requests for Evidence (RFEs) and denials for H-1B petitions for high-skilled foreign-born professionals,” according to a new report from the National Foundation for American Policy (NFAP). Data obtained by NFAP from U.S. Citizenship and Immigration Services show the impact of the administration’s efforts, particularly in the 4th quarter of Fiscal Year 2017 (which started July 1, 2017).

An analysis of the USCIS data in the report finds:

•  “The proportion of H-1B petitions denied for foreign-born professionals increased by 41% increase from the 3rd to the 4th quarter of FY 2017, rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.

• “The number of Requests for Evidence in the 4th quarter of FY 2017 almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 vs. 63,599). Failure to comply with an adjudicator’s Request for Evidence will result in the denial of an application.

• “As a percentage of completed cases, the Request for Evidence rate was approximately 69% in the 4th quarter compared to 23% in the 3rd quarter of FY 2017.

• “Demonstrating the trend in adjudications is continuing, in the 1st quarter of FY 2018 the denial rate was 30.5% for L-1B petitions (for employees with ‘specialized knowledge’) and 29.2% in the 2nd quarter of FY 2018, both representing an increase from a denial rate of 24% for L-1B petitions in FY 2016.”

It is logical that the big increases in denials and Requests for Evidence did not happen immediately after Donald Trump took office. “It took some time to get people in to many of the key positions,” said immigration attorney Greg Siskind in an interview. “Once we saw who was being appointed, a who’s who of stars in the anti-immigration world, no one was really surprised with what we’re seeing.”

Making adjudications more difficult is only one facet of a broad-based administration plan to prevent high-skilled foreign nationals from working in the United States. This recent article explains the harsh consequences of the new USCIS policy memo on Notices to Appear, which could result in a foreign-born scientist or engineer being placed in deportation proceedings if their H-1B or other application is denied and the long processing time leaves the individual no longer still in status.

Another new policy would allow adjudicators to deny applications without providing a Request for Evidence or giving employers a chance to correct information on applications. U.S. Citizenship and Immigration Services also plans to prevent the spouses of many H-1B visa holders from working and to restrict or end the ability of international students to work on Optional Practical Training (OPT) after they complete their studies, even if they have degrees in science, technology engineering and math (STEM) fields. This would make it difficult or impossible for many international students to obtain H-1B status after graduating from U.S. universities, which is a longstanding goal of key Trump immigration policymakers.

And this brings us back to the Trump administration’s plans to impose tariffs on possibly all Chinese imports – an ill-conceived policy that will raise prices for American consumers and close off many export markets for U.S. producers. The administration claims a key motivation is to allow the United States to prevail in the development of the next decade’s emerging technologies and overcome “China’s stated intention of seizing economic leadership in advanced technology.”

“One target of U.S. ire is the Made-in-China 2025 program, which oversees billions of dollars in subsidies to develop champions in artificial intelligence, robotics, low-emissions vehicles and quantum computing,” writes David Lynch in the Washington Post.

If the goal is for the U.S. to “beat” China in technologies such as artificial intelligence and low-emission and autonomous vehicles, then the worst possible thing to do is what the Trump administration is doing – making it as difficult as possible for high-skilled foreign nationals, particularly international students in STEM fields, to work in the United States.

Economists Giovanni Peri, Kevin Shih and Chad Sparber researched H-1B visas and found, “When we aggregate at the national level, inflows of foreign STEM workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010.” Moreover, the entry of H-1B visa holders actually increases the wages of Americans: “A 1 percentage point increase in the foreign STEM share of a city’s total employment increased the wage growth of native college-educated labor by about 7–8 percentage points and the wage growth of non-college-educated natives by 3–4 percentage points.”

Even though approximately 80% of full-time graduate students in computer science and electrical engineering at U.S. universities are international students and provide enormous benefits to the country, the Trump administration would like nothing better than to prevent these talented individuals from working in America. It would be difficult to craft a more misguided policy.