Without New Laws or Walls, Trump Presses the Brake on Legal Immigration
by Foster LLP, on News
By Miriam Jordan, The New York Times
The Cleveland Clinic has faced challenges securing visas for foreign-born specialists, one of many employers affected by President Trump’s tougher approach toward immigration. Credit T.J. Kirkpatrick for The New York Times
A scientist recruited by the renowned Cleveland Clinic is stuck in India because his visa is delayed. An entrepreneur courted by Silicon Valley companies had his application denied. Many green card applicants have new interviews to pass.
The Trump administration has pursued its immigration agenda loudly and noticeably, ramping up arrests of undocumented immigrants, barring most travel from several majority-Muslim countries and pressing the case for a border wall.
But it has also quietly, and with much less resistance, slowed many forms of legal immigration without the need for Congress to rescind a single visa program enshrined in the law.
Immigration and State Department officials are more closely scrutinizing, and have started more frequently denying, visas for people seeking to visit the United States on business, as well as for those recruited by American companies, according to lawyers representing visa seekers. Foreigners already in the United States whose employers wish to extend their stay also are facing new hurdles.
“I call this the real wall,” said Anastasia Tonello, the president-elect of the American Immigration Lawyers Association. “The wall is being built.”
The changes show how the Trump administration has managed to carry out the least attention-grabbing, but perhaps farthest-reaching, portion of the president’s immigration plans: cutting the number of people entering the United States each year as temporary workers or permanent residents.
The administration has put into practice the philosophy President Trump laid out in a pair of executive orders billed as protecting the nation from terrorism and its workers from foreign competition.
One of them, the “Buy American, Hire American” order, singles out the H-1B visa program. Hailed by proponents as vital to American innovation, H-1Bs also have been derided as a way to displace United States workers with cheaper foreign labor; in one highly publicized case, some Disney employees were told to train their foreign replacements if they wanted severance payments.
Each year, 85,000 H-1Bs, which are valid for three to six years, are available to companies, according to a ceiling set by Congress. Demand far outstrips supply when the economy is healthy, prompting the government to hold a lottery.
But now even applicants lucky enough to be chosen are drawing more scrutiny.
Officials are asking for extra details about applicants’ education and work history, the position to be filled and the employer, requiring the company to amass many additional documents, which can postpone a decision by several months.
For H-1Bs, the number of such “requests for evidence” from January to August this year jumped 44 percent compared with the same period last year, according to the most recent data from United States Citizenship and Immigration Services.
So far, the government is still greenlighting most H-1B applications that survive the lottery, but the approval rate is inching down.
For the first two months of this fiscal year, October and November, 86 percent and 82 percent of H-1B applications were approved. That compares with 93 percent and 92 percent for the same months last year. The data does not reflect companies that give up after receiving requests for more evidence.
Once a company has spent thousands of dollars in attorney fees to petition for a worker, “there is huge discouragement after an R.F.E. is issued,” said Roxanne Levine, an immigration attorney in New York, “because of the massive extra time, effort and money required to respond.”
L. Francis Cissna, the immigration agency’s new director, said in an interview that if there are more requests for evidence, “that is perfectly rational and perfectly appropriate.”
“We are looking at the entire program to ensure the entire thing is administered well and in conformity with congressional intent,” he said.
He recently met with a group of displaced American workers in Florida, including some laid off by Disney. The meeting was arranged by Sara Blackwell, an employment lawyer who leads a group called Protect U.S. Workers. “The administration has done much more for American workers, but I hope to see much more soon,” she said.
Still, immigration lawyers and companies seeking the visas say that some of the decisions appear arbitrary.
After responding to requests for evidence, a consulting firm that applied for an H-1B for an energy expert from Britain received a denial stating that the skills for the position “do not appear to be of such complexity, uniqueness or specialization as to require the attainment of a bachelor’s degree,” a prerequisite for the visa.
H-1B visa petitions arriving at a government processing center in Laguna Niguel, Calif. As a candidate, President Trump vowed to end the visa program. Credit Eros Hoagland for The New York Times
Kristen Albertson, the operations manager at the firm, called the outcome “egregious.”
“We apply only when it’s a strong case and essential to our business,” she said of the applicant, who is a graduate of the University of Chicago.
An H-1B visa for an Indian scientist recruited by the Cleveland Clinic for his expertise in cellular biology is stuck in “administrative processing” in New Delhi, meaning it is undergoing further review that could stretch months. “His team’s projects are now on hold due to the delay,” said Janice Bianco, an official at the Cleveland Clinic who handles applications for foreigners.
She said a visa for a pediatric geneticist hired in the spring took three months to be issued — in the past, it would have taken about three weeks — forcing the hospital to reroute some patients to other facilities.
The State Department, which has handled the Cleveland Clinic visa requests, said in a statement that “consular officers have the discretion to request additional screening in any case.”
Other types of visas also are tougher to get now. During trips to Silicon Valley, Vladimir Eremeev of Russia was encouraged to establish a branch of his cloud-based technology company, Ivideon, in the United States. In Europe, Ivideon employs 150 people, and Philips, the Dutch multinational, sells a camera powered by its technology.
Mr. Eremeev drew up plans, which his lawyer in New York detailed in a 347-page visa application. He was applying for an L-1A visa, awarded to executives transferring to the United States.
“Sounds and looks great, but it didn’t help me obtain a visa,” Mr. Eremeev said in a phone interview.
Among other things, the immigration agency stated that the office leased by Mr. Eremeev did not appear to be suited for a “business that would require the employment of a manager or executive.” His lawyer provided details and pictures of the space.
Ultimately, the government denied the petition, stating that the “organizational structure” presented did not support the “managerial or executive position” that Mr. Eremeev was to fill.
“You are going in circles,” said the lawyer, Oksana Bandrivska, “and it’s getting harder to win cases.”
Russell Harrison, director of government relations for IEEE-USA, a society of technology professionals, applauded the administration’s efforts to tackle visa abuse. However, he said, a blanket approach could stifle American competitiveness.
“They seem to be against anyone coming in, which is a simplistic view,” Mr. Harrison said. “There are some incredibly talented people not born in this country and they are being treated just like other workers who are cheap.”
Some lawyers said they had also seen more scrutiny of H-2B visas, the seasonal work permits that Mr. Trump uses to staff his Mar-a-Lago club in Florida. Jeff Joseph, a lawyer in Aurora, Colo., said the government was more often denying visas for companies that sought the visas season after season. (Mar-a-Lago uses them only during winters.)
The government’s argument, Mr. Joseph said, is that those companies are trying to import temporary workers to fill permanent jobs that should go to Americans. But he said his clients faced a shortage of local labor year after year to fill jobs in construction, lodging, landscaping and amusement parks.
Other changes affect foreigners already working or living in the United States on H-1Bs or other temporary permits.
Those sponsored by their employers for a green card, or legal permanent residency, must pass in-person interviews, a reversal of a 20-year-old policy that is likely to exacerbate a long backlog in green card applications. A memo from the immigration agency said the change was in line with the executive order to safeguard the nation from terrorism.
The administration said this month that it planned to eliminate a program established during the Obama administration that allows international entrepreneurs to stay in the United States for up to five years. The administration also said it would eliminate a two-year-old program that granted work permits for spouses of H-1B workers. And it recently announced plans to restrict the ability of foreign students to work temporarily in the United States after they graduate.
Another change affects green card holders who enlist in the military. Since the Sept. 11, 2001, terrorist attacks, military service has provided a faster path to citizenship than applying as a civilian, typically taking just 10 weeks.
In October, the Pentagon enacted new procedures that substantially slow the process by adding several layers of vetting. The change affects thousands of immigrants who have already enlisted because they cannot start training before clearing the background checks.
The Pentagon said the new measures were needed to ensure that terrorists do not infiltrate the military. But Margaret Stock, an immigration lawyer and retired lieutenant colonel in the Army, said the military would suffer. “They are turning away green card holders with language, cybersecurity and other skills that the United States military needs,” she said.