ASKING FOR TOO MUCH

The harrowing reality of getting and working on an H-1B in Trump’s America

Quartz india
Quartz india

For almost five weeks last year, Shikha Gupta*, an Indian working with a large consulting firm in New York, was unemployed and without pay, because of the Donald Trump administration’s changes to the H-1B visa process.

Gupta, a New York University graduate, had been working for about nine months with the consulting firm, which employs a quarter of a million people worldwide, when she applied for the H-1B in April 2017. She lucked out. Her name was drawn in the H-1B lottery, which is capped at 85,000 visas each year. The H-1B is a much sought-after non-immigrant visa that allows foreign workers in specialty occupations to live and work in the US for up to six years.

Gupta’s agony began thereafter.

Even after being selected in the lottery, the US government bombarded Gupta’s employer with requests for evidence (RFEs) to justify why she deserved the visa. By the end of September, her student work authorisation ran out. This forced her employer to fire her and re-hire her only once the H-1B arrived in November 2017, six months after the petition was approved.

“As there was a much higher incidence of RFEs last year, the lawyers (at my employer) were swamped and less forthcoming about the plan and timeline for responding to RFEs,” Gupta told Quartz. “Eventually, this led to a gap between my student work authorisation and the beginning of the H1-B visa.”

While RFEs are not a new feature, lately there has been a “broad and burdensome” increase in such requests, immigration experts say. So, firms are getting bogged down by the extra paperwork and costs, often delaying the authorisation process. And, in some cases, employers are having to bulk up existing teams as the fate of H-1B workers hang in the balance.

A punishing process

Between Jan. 01 and Aug. 31 last year, the number of H-1B petitions grew by a mere 3% compared to a year earlier, but the jump in RFEs was a massive 45%, data from US Citizenship and Immigration Services (USCIS) show.

In a survey conducted between November and December 2017, over two in five employers said they found navigating the US visa-filing process more difficult than before. The survey (pdf) was conducted by global immigration firm Envoy, polling 400 human resources professionals. Nearly 60% of the respondents reported an increase in the RFEs they had received from the US government.

The higher RFEs have “increased both the time and money involved in applying for an H-1B,” said Berin Romagnolo, an immigration lawyer at Boston-based law firw Posternak, Blankstein & Lund. Many of her firm’s clients also had to push back the joining date for new hires, sometimes by several months, due to higher RFEs.

The information being sought in these RFEs include, among other things, details of wages being paid to applicants to ensure they are in line with the prevailing market levels and proof of skill sets to ensure the workers truly are engaged in a specialty occupation.

In addition, third-party work—wherein employees do contract-based work out of a client’s site instead of their direct employer’s officehas come under the scanner. Since the start of this year, the USCIS has been seeking specific itineraries and schedules of workers’ stay in the US, said Sam Adair of San Jose-based immigration law firm Graham Adair LLP.

“It is rare that a contract with an end-user client will specifically say that a specific person by name will be doing specific duties X, Y, and Z for three years,” Romagnolo said. Clients often won’t commit as they don’t want to bind themselves.

Criteria for certain roles like computer programmers are becoming more stringent; companies now have to prove what specialised knowledge their foreign workforce brings to the table versus hiring entry-level programmers. And increasingly, an employee’s field of education has to align directly with his or her job role. “An electronic engineering degree may now be questioned for an IT job, and an MBA may be questioned for a marketing or sales job, whereas, in the past, these degrees were sufficiently related and adequate,” Romagnolo said.

In other cases, employers are asked to provide past job postings or share the education qualifications of those who previously held similar positions—details the employers may not have any copies of, she added.

The uncertainties do not end even after scoring the visa.

Employed but out-of-work

Gupta’s life on the H-1B has not exactly been smooth-sailing.

Her job entailed frequent travel to client locations across the US. However, in April this year, she was left in a limbo since the Trump administration had already made working on third-party sites more complicated. A Feb. 22 memo from the USCIS announced that H-1B beneficiaries—both existing and new ones—working at third-party sites had to provide “specific and non-speculative qualifying assignments… for the entire time requested on the petition.” This makes it almost impossible for workers to remain on the bench, or move between short-term projects at short notice.

Two of Gupta’s other team members could not travel to locations other than their direct employer’s one mentioned in their H-1B petitions, she told Quartz.

So, in case the increased red tape forces their H-1B workforce to be out of commission, several companies, including Gupta’s, are hiring more people, according to Envoy’s survey.

In cases known to Quartz, an H-1B worker’s visa was approved for just one year out of the three that the USCIS typically assigns, derailing their long-term plans, while another was selected in the lottery but was denied the visa after the RFE process.

Giving up?

Half a dozen immigration lawyers Quartz spoke with agreed that these hassles have had a chilling effect on employers. Some employers have dropped H-1B cases after receiving overly burdensome RFEs. Others have dramatically reduced the number of H-1B applications they file out of fear of the time and cost involved.

Indian firms like Wipro and Infosys, which were known for hiring thousands of entry-level engineers and even accused of abusing the visa system, are facing added scrutiny in the Trump era. Already, India’s big IT companies, who have historically been the biggest beneficiaries of H-1B visas, have reeled back their applications.

Overall, at 190,098 applications received for the financial year 2019, filings were down by over 45,000 from the peak of 236,000 two years ago.

The unpredictability around what the visa situation will be like under the Trump administration is raising red flags within the international student community. Fewer students from abroad are choosing to study in the US. Considering every 100 foreign-born students who graduate from a US university with an advanced degree and stay to work in a STEM field create 262 jobs for American workers, this is bad news for the US. “…when H-1B applications are foregone, jobs remain unfilled, and productivity, revenue, and growth decline,” Romagnolo said.

And if the question marks around the H-1B don’t die down, maybe the likes of Gupta won’t come to American universities, get a job, and start building a life in the US at all.

Still, some optimism persists.

“The sentiment is one of caution,” Gupta said. “…the current political climate is so volatile, and the restrictions around H-1B workers is not set in stone. It feels like (everyone) is hoping for a better outcome.”

*name changed to protect the identity of the worker.

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