Trump Gums Up Foreign Worker Program

Jul 10, 2019

Companies like IBM use skilled international workers through the H-1B program. But under the Trump Administration, employers have had to jump through more hoops to make hires.
Credit IBM

Under the Trump Administration, U.S. Citizenship and Immigration Services has thrown sand in the gears of a program designed to provide high tech companies with the skilled labor they need. The intention from USCIS is to implement President Donald Trump's Buy American and Hire American executive order, but the effect for employers has been to make it more difficult to find qualified skilled labor.

The effects can be seen across various worker visa programs, but are most pronounced in H-1B, the visas for skilled and technical foreign workers.

During the final years of the Obama Administration, H-1B visa applications were approved at a 94 percent rate, according to USCIS data. But as the Trump Administration settled in, those rates dipped. In 2018, the approval rate dropped to 84.5 percent, and has dipped to 79.4 percent for the first half of 2019.

What's more, USCIS is putting applicants through a more rigorous application process. In addition to approving or denying an application, the government can return an application with additional "Requests for Evidence" or RFE. These require the applicant – or the applicant's immigration attorney – to provide additional evidence. In some cases, additional evidence is warranted to determine the eligibility of a foreign worker, or the legitimacy of the advertised position. In other cases, however, the requests seem capricious, like asking a major bank if can afford the salary of a mid-level manager.

Under the Obama Administration, USCIS filed for additional RFE for about 21 percent of applications. Under Trump, that jumped to 38 percent in 2018 and 48 percent for the first half of 2019.

This interactive chart and the two that follow are based on USCIS data publicly available. Scroll over any parts of the chart to see more detailed information. For the bar charts, click on the minus symbol to the left of the fiscal year to see data by year.

Total applications into the H-1B visa program have increased to almost 419,000 in 2018, up from 368,000 in 2015. To qualify for an H-1B temporary visa, an individual must have at least a bachelor's degree – many have higher degrees as well – that must be earned from, or deemed equivalent to that of a United States college. Also, the position sought by the visa holder must require such a degree. For example, a company seeking an electrical engineer, must hire a visa holder with a degree in electrical engineering. Employment positions that don't require at least a bachelor's degree are not eligible for the H-1B visa program.

The higher scrutiny has not only added work for immigration attorneys, but caused multinational corporations to pause when eying the United States. That's true for companies in and around Research Triangle Park, as well.

"In my dealings with foreign companies I have found that a major area of concern with U.S. expansion is the challenge of securing visas for employees," said Ryan Combs, executive director of Research Triangle Regional Partnership. "We can't expect a CEO to make a major investment in a location when they may be unable to bring critical employees like management and engineers into the country. For the U.S. to remain competitive in attracting global companies, we need to modify and streamline our visa program to reward international companies who are investing in the U.S. and providing jobs to American workers."

Looking For Skilled Labor

North Carolina Public Radio sought input from multinational companies in the Triangle, but none agreed to elaborate, fearing they would see even higher rates of scrutiny from the federal government.

Andrew Merrills practices immigration law for Ogletree Deakins. He joined the Raleigh office in 1994 and has seen the practice grow exponentially over the decades. But some of the most dramatic changes have happened recently.

"The process used to be much more straightforward. We certainly did have challenges at times, but certainly not like what we're dealing with now," he said.

In a strong economy, employers increase demand for foreign workers. This makes sense. As employment increases, the pool of available workers shrinks, so employers have to look elsewhere. This happened in the boom years of the late 1990s.

Merrills remembers those years, and while it might seem that the strong economy from the past few years would elicit a similar trend, that has not been the case.

"The scrutiny level of these cases have really gone up. We've really entered into a different era in terms of immigration with the Trump administration – a much more protectionist mentality," he said. "There haven't been any updated regulations, or changes to law, so to speak, but through executive orders, and through internal changes the scrutiny level, particularly for H-1Bs, has really increased with the number of RFEs – requests for evidence – and the number of denials on H-1Bs."

These requests have grown increasingly banal.

"The RFEs are (now) often kind of just a laundry list. So sometimes we wonder, 'Did the immigration officer really even review the case? Or did they just print out this laundry list RFE to delay the adjudication of the case?'" said Merrills. "Because while RFEs may be issued on cases that may have questions, a lot of times RFEs are issued on very straightforward approvable cases that a year ago − three years ago − would have been approved without question and probably should be approved without question."

Merrills estimates the additional RFEs are costing employers anywhere from $1,500 to $4,000 more per visa application.

This chart shows the denial rate of H-1B petitions for initial employment in the U.S. (selected companies).
Credit National Foundation for American Policy / Statista

USCIS officials did not respond directly to questions about the increased scrutiny on H-1B visas, though USCIS Director L. Francis Cissna has said that any changes are to fulfill Trump's Buy American and Hire American executive order. In a statement in a recent press release, Cissna said one of the "principal goals" of the order "is to protect the interests of U.S. workers in the administration of our immigration system, in part by promoting the proper functioning of the H-1B visa program. Our new H-1B data hub will make information more accessible to the public, and the new selection process will help make the system more meritorious and better protect the wages of U.S. workers."

But many employers say they have had trouble filling high-skill positions. According to the latest Duke University/CFO Global Business Outlook survey, difficulty hiring and retaining qualified employees remains the most-cited concern among chief financial officers.

"In the late stages of a business cycle, it is not unusual for CFOs to be confronted with tight labor markets and face difficulty hiring and retaining top talent," said Campbell Harvey, a founding director of the survey and Duke University Fuqua School of Business finance professor. "However, this time is different. Given the reshaping of the American economy toward tech, there is an acute shortage of qualified labor. CFOs are strongly advocating immigration reform to fill the gap."

Duke has conducted the survey for 93 straight quarters, making it the longest continuously running survey of its kind. For the survey conducted in the second quarter of 2019, more than four of five CFOs favored immigration reform.

"Some expressed frustration that qualified workers have to win a visa lottery to be hired long-term, when these workers are needed to fill a talent gap," says John Graham, a finance professor at Duke's Fuqua School of Business and director of the survey. "The business community is sending a strong message to lawmakers about the importance of immigration reform."

Merrills, the immigration attorney, said he sees the higher scrutiny as part of the greater immigration policy under the administration.

"I don't think this is being driven by a weaker economy or a stronger economy. It's being driven by the Trump administration, and a desire to have more of a protectionist type setup mentality when it comes to immigration across the board. And that also impacts employment immigration, as well as undocumented workers and so forth."