Work visas: H-1B pro­gram could see ma­jor changes

San Francisco Chronicle - - BAY AREA - By Melia Rus­sell

Pres­i­dent Trump had a sur­pris­ing mes­sage for highly skilled for­eign-born work­ers in the coun­try early Fri­day morn­ing: stay awhile.

In a tweet, the pres­i­dent promised changes to the H-1B visa pro­gram that could make it eas­ier for them to ac­cess “a po­ten­tial path to cit­i­zen­ship.” He wrote, “We want to en­cour­age tal­ented and highly skilled peo­ple to pur­sue ca­reer op­tions in the U.S.” Al­though he didn’t of­fer specifics, im­mi­gra­tion at­tor­neys point to a rule change pro­posed in Novem­ber that would help large Bay Area tech com­pa­nies bring highly skilled for­eign­ers to their head­quar­ters, at the ex­pense of In­dian out­sourc­ing firms’ abil­ity to hire work­ers.

The rule change fid­dles with the lot­tery that de­ter­mines who gets the 85,000 H-1B visas granted to for-profit com­pa­nies ev­ery year. The Depart­ment of Home­land Se­cu­rity wants to im­prove the odds for peo­ple who earned an ad­vanced de­gree at an Amer­i­can univer­sity.

“There is no small irony in the fact that ev­ery­thing the Trump ad­min­is­tra­tion has done so far would ac­tu­ally make it harder to get the H-1B visa,” said Doug Rand, a co-founder of Bound­less Im­mi­gra­tion, a tech firm that helps fam­i­lies nav­i­gate the process.

Though the ad­min­is­tra­tion can make some changes to the rules for the visa pro­gram, the H-1B visa was es­tab­lished by laws passed by Congress, and only the fed­eral leg­is­la­ture can make sub­stan­tial changes to the pro­gram.

But in ad­min­is­ter­ing the pro­gram, the ex­ec­u­tive branch has con­sid­er­able power over H-1B visa hold­ers and hope­fuls. Some H-1B ap­pli­cants have had a harder time get­ting ap­proved for the cov­eted visa since Trump took of­fice. The num­ber of “re­quests for ev­i­dence” — doc­u­ments from the gov­ern­ment ask­ing lawyers to jus­tify their client’s ap­pli­ca­tion — in the fourth quar­ter of 2017 was al­most equal to the to­tal num­ber of such re­quests is­sued for the first three quar­ters, ac­cord­ing to data from U.S. Cit­i­zen­ship and Im­mi­gra­tion Ser­vices.

Thou­sands of ap­pli­cants are get­ting de­nied, prompt­ing them to go home or take their tal­ents to other coun­tries. The de­nial rate was up 41 per­cent be­tween the third and fourth quar­ters of 2017, the last year that Cit­i­zen­ship and Im­mi­gra­tion Ser­vices re­leased such data.

Ja­son Finkel­man, an im­mi­gra­tion lawyer based in Austin, Texas, said the tweet was “ex­tremely in­con­sis­tent with ev­ery­thing this ad­min­is­tra­tion has done,” cit­ing ex­ec­u­tive or­ders and mes­sag­ing that “ex­plic­itly state that they want to make the H-1B visa process as strict as pos­si­ble.” In 2017, Trump signed a high-level or­der di­rected at the Depart­ment of Home­land Se­cu­rity that has been used to jus­tify ex­tra scru­tiny on the visas.

“It doesn’t tell them to do any­thing spe­cific. It just says make sure you’re pro­tect­ing Amer­i­can jobs,” Finkel­man said.

The pres­i­dent’s tweet marked a shift in mes­sage and tone from his usual re­marks on im­mi­gra­tion. While some ex­perts said they sus­pect the tweet was meant to drum up sup­port for the pro­posed rule change, Ira Mehlman, a spokesman for the Fed­er­a­tion for Amer­i­can Im­mi­gra­tion Re­form, or FAIR, ex­pressed con­cern that Trump’s promised “changes” to the H-1B pro­gram do not go far enough. His or­ga­ni­za­tion is call­ing for a “more log­i­cal sys­tem” that doles out visas based on the ap­pli­cant’s in­di­vid­ual merit, Mehlman said.

“One of the rea­sons we have ... the whole al­pha­bet soup of tem­po­rary work visas is be­cause we don’t look at what (ap­pli­cants’) skills are and whether they match the needs of our econ­omy,” Mehlman said.

“You have most of the visas snapped up by these la­bor con­trac­tors and, in many cases, the work­ers they’re bring­ing in aren’t ex­cep­tion­ally skilled work­ers. They have the rou­tine skills that are eas­ily found in this coun­try.”

Im­mi­gra­tion at­tor­neys called the pres­i­dent’s tweet “puz­zling” for a lot of rea­sons. Chad Gra­ham, a lawyer who spe­cial­izes in work-based im­mi­gra­tion at San Jose law firm Gra­ham Adair, spec­u­lated that Trump may have mis­spo­ken when he said a “path to cit­i­zen­ship” ver­sus per­ma­nent res­i­dency.

U.S. em­ploy­ers ap­ply for the visa on be­half of the for­eigner they want to hire, and the visas are awarded through a lot­tery. H-1B hold­ers are al­ready el­i­gi­ble to ap­ply for green cards be­fore their visas run out. But since the wait­ing pe­riod for green cards varies by coun­try of ori­gin, with es­pe­cially long waits for In­dian na­tion­als, res­i­dency — and even­tu­ally cit­i­zen­ship — can be far off.

“Ev­ery H-1B visa holder has a path­way to cit­i­zen­ship,” Finkel­man said. “It’s a long path­way.”

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