H-1B visas, also known as tech visas, are one of the most vital tools for hospitals, software companies, the healthcare industry, and other major business sectors. The world's best talent isn't necessarily from the U.S., so H-1B visas are vital for bringing over some of the world's best doctors, researchers, thinkers, and programmers. President Trump, speaking at a toolmaking factory, promised to 'crack down' on H-1B visas in order to make sure only highly-skilled, highly-paid applicants were accepted. However, a recent Mother Jones investigation revealed that the recent crackdown had little to do with attracting more talent.
If anything, the H-1B visa is kicking talented people out. Here's how:
Higher Denial Rate
Compared to 2015, H-1B visa applications were four times more likely to be denied, resulting in 50,000 total denials last year. Mother Jones and Reveal found that many of these denials happened to experienced, well-paid employees with degrees from American colleges. Many of them were previously H-1B holders.
Sandra Feist, a Minneapolis immigration attorney, has noted that the "skepticism" and "cynicism" her clients are facing is worse than it was in the months following 9/11. Many former H-1B holders were denied renewals, despite the fact that H-1B renewals used to be all but guaranteed, especially when the worker's job hadn't changed. That's no longer the case.
The Rules Are Being Misapplied
Rather than writing new rules for H-1B visas, the Trump administration has been interpreting current rules far more strictly—to the point of misuse, some experts say. Lawyers and immigration experts say the new procedures are applied unpredictably and inconsistently.
For instance, from 2014 to 2017, only 3 percent of H-1B denials were reversed on appeal. In other words, the USCIS was largely denying the cases that were supposed to be denied, with a 97% accuracy rate. In 2018 and 2019, 14% of denials were reversed on appeal. One immigration lawyer said that more cases that should be approved are being denied inappropriately.
More Lawsuits & Legal Challenges Than Ever Before
Because the rules aren't being applied fairly, there's been an "explosion" of lawsuits and challenges to H-1B decisions in federal court. The organization our firm is involved with, the American Immigration Lawyers Association (AILA), has trained immigration lawyers on filing H-1B lawsuits when their clients face unjust denial. Individual plaintiffs and large companies alike are taking USCIS to task for its handling of H-1B visas.
In 40% of these lawsuits, the USCIS reversed its decision before the judge could rule. In one case that made it before a judge, the court ruled that the USCIS had "abused its discretion." For the first time in many experts' experience, federal courts are not deferring to a federal agency regarding its own ruling.
For H-1B visa holders, many of whom have spent years building a life and a family in the United States and are on a path toward citizenship, these changes are a potential upending of their lives. If you have questions about your case, speak with our New Jersey H-1B visa attorney today.