Crackdown on H-1B visas hits entry-level applicants
Some workers seeking H-1B visas — particularly entry-level applicants, often fresh graduates — are having a harder time getting approved, immigration lawyers say.
Under new guidelines, foreigners who would be paid the lowest range of wages in the program are receiving scrutiny that past applicants have rarely, if ever, received.
The changes are consistent with the Trump administration’s desire to curtail lower-paid foreigners from coming into the country, and constitute a significant shakeup to the H-1B program that many Silicon Valley companies rely on to staff technical positions. Facebook, for example, has more than 15 percent of its workforce here on H-1B visas, according to a Reuters analysis.
Officials at United States Citizenship and Immigration Services are singling out applicants who would receive a “Level 1” wage, the lowest salary the Department of Labor allows foreigners to be paid in a certain profes-
sion. Officers are then sending immigration lawyers a “request for evidence” document, known for its cover page printed on light-blue paper, asking them to justify their client’s application.
The light-blue documents are standard in the H-1B application process when the government needs more information before approving a visa. But what’s new, immigration experts say, is that entry-level salaries appear to be specifically targeted.
“When I got the request, I was like, ‘What are they questioning now?’ ” said Olivia Lee, a San Francisco immigration attorney, who said about 6 percent the H-1B applications she filed this year received an official inquiry on the salary offered.
Several other lawyers across the country said they had never encountered this volume of requests regarding entrylevel salaries. Some said they couldn’t recall ever getting any.
“This is a new wrench they’re throwing at us,” Lee said.
H-1B visas allow foreign workers with specialized skills to spend three to six years working at a sponsor company in the U.S. There are 85,000 visas allocated to for-profit companies through a lottery each year.
They are reserved for “specialty occupations,” which means the job is so complex that it requires someone with a bachelor’s degree or higher. In several requests for evidence reviewed by The Chronicle, officials ask lawyers to explain why a certain position is so technical that it requires a specialized degree.
“The H-1B by definition is supposed to be for a specialty occupation,” said Ron Hira, a researcher at the Economic Policy Institute, a nonprofit think tank in Washington. “But over the years, that got watered down.”
In fiscal year 2015, 41 percent of all approved H-1B applications were at a Level 1 wage, according to the Economic Policy Institute.
Level 1 salaries are often limited to positions that require less than two years of experience. Level 4 salaries, the highest possible wage rate, are typically reserved for positions requiring at least five years of experience.
The difference in wage levels is dramatic. A computer programmer working on an H-1B in Santa Clara County on a Level 1 wage would make at least $55,203 a year, according to the Department of Labor. A Level 4 employee would make at least $117,416 a year.
While many companies, particularly those in Silicon Valley, rely on the visas to staff technical positions and often pay well above the mandated levels, critics say the program is rife with loopholes that allow companies to squeeze out American workers in favor of foreigners willing to work for lower wages.
The Trump administration issued an executive order in April that said it will crack down on the abuse of H-1B visas by awarding the visas to the “most skilled or highest-paid beneficiaries.”
Congress is considering bills that would raise the minimum salary for any H-1B visa up to $130,000, a move that would rule out its use for many entry-level positions, but has yet to pass any changes to the program into law.
However, the immigration agency issued a memo in March that said computer programmers would no longer automatically qualify for an H-1B visa. As a result, the agency warned employers that they may have to provide additional evidence before visas for programming jobs would be granted.
Tucked into a footnote in that memo is a directive to immigration officers to review H-1B applications for wage levels. That means immigration lawyers must walk a fine line between proving the job is specialized enough that it requires a degree, but not so high-skilled that it warrants a higher salary.
“If a petitioner designates a position as a Level 1 entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation,” the footnote reads.
While the memo itself addressed computer programming jobs, several immigration lawyers said they’ve been receiving questions on applications for data analysts, software developers and business analysts, which are considered separate categories of employment.
León Rodríguez, the former director of United States Citizenship and Immigration Services who left in January, said the agency was never directed to target a specific wage level during his tenure.
“We were focused on fraudulent use of H-1Bs, and that’s something they have always focused on,” he said. “But this focus on whether a Level 1 can even qualify ... that is a new issue.”
The immigration agency maintains nothing has changed in the approval process. “As done in the past, officers evaluate each petition on a caseby-case basis to determine if a petition qualifies for the benefit being requested,” the agency said in a statement.
A request for evidence does not mean the application will be denied. But it could lead to uncertainty about when — or even if — an applicant can start work.
Lee, the San Francisco immigration attorney, said she only has a few weeks to respond to all of the requests that she’s received over the past few months.
It takes a mountain of paperwork to respond to a request. Lee needs to break down what the client’s job will entail, down to specific projects the worker will take on, as well as submit resumes and wages of employees in similar positions.
“Some of the cases will likely face tougher challenges than years past,” Lee said. “If they are not successful — then what are the options for that individual?”