The Trump administration appears to be cracking down on U.S. companies that frequently use H-1B temporary skilled worker visas, promising spot inspections and more effective government response to allegations of visa fraud.
But legal experts and right-wing immigration reform advocates agree that the proposals sound much more effective than they really are.
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United States Customs and Immigrations Services announced in a Monday press release that the agency will be taking “a more targeted approach” when visiting the workplaces of H-1B employees. USCIS has set up a new email address to solicit alleged abuse of the program, and the agency plans to focus on “H-1B-dependent employers,” or companies with at least 15 percent of employees on the visas.
Additionally, a report from Axios pointed to a separate USCIS memo quietly released over the weekend suggesting that “computer programmers are no longer presumed to be eligible for H-1B visas.” The change, according to the guidance, is that H-1B applicants may be asked to supply further evidence of their technical credentials for computer-related work.
When the H-1B visa was introduced in 1990, it was viewed as a way to get highly skilled workers temporarily into the country; between 1990 and 2014, the number of H-1B visas annually approved grew from 800 to more than 160,000. But critics say that over the last two and a half decades, it has evolved into a stopgap measure that is somewhere between a tourist visa and a “green card.” The result is a program disliked by both proponents of protectionism and those who want more relaxed immigration policies.
Though the USCIS press release about site targeting drew attention for its protectionist language, the memo about what might happen to software workers initially appeared to be of greater consequence. Data from the agency show that in 2015, the most recent year for which such information is available, “computer-related occupations” accounted for 66.5 percent of the roughly 275,000 H-1B visa applications approved.
Mark Krikorian, executive director of the right-wing Center for Immigration Studies, said that Trump had “missed an opportunity” to implement serious reform — like eliminating the H-1B lottery altogether. And Matt O’Brien, the research director at the right-wing Federation for American Immigration Reform, said the USCIS guidance change on software workers was “last-minute posturing.”
“Most people who believe immigration is a rule-of-law issue and an issue of consistent enforcement have not been satisfied with the progress [of the Trump administration on H-1B visas],” O’Brien said. “It’s a half step that probably isn’t going to accomplish a whole lot.”
Deborah J. Notkin, a lawyer specializing in corporate immigration work at Barst Mukamal & Kleiner, called it a “very confusing document” that had arrived at the “11th or 12th hour” for companies applying for H-1B visas. She said the document largely reflected the enforcement policies practiced by the Obama administration in the last few years, and that the main problem was releasing the memo after most companies had already applied for the H-1B lottery.
“It’s like asking you to file for your driver’s license, and then saying you have to provide more than one birth certificate after the application has already been filed,” Notkin said.
Wall Street doesn’t seem to think the USCIS moves will have much of an impact either. When rumors were flying in early February about supposedly imminent H-1B visa reform, tech companies took a hit, particularly large foreign outsourcing firms like Infosys and Wipro that deal heavily with H-1B visas; those companies lost billions of dollars in market value on the assumption that their businesses would be weakened by reform.
Such companies have bounced back in a big way on the stock market since then, and Monday’s news didn’t really move the needle on their share prices. In early March, Indian media reported that they planned to significantly cut the number of their H-1B visa applications to the U.S. regardless.
In Silicon Valley, companies like Facebook and Google also use H-1B visas to source talent from abroad. On Monday, FWD.us, a pro-immigrant advocacy group with deep connections to Silicon Valley in general and Facebook in particular, unveiled a new initiative aiming to “fix and expand the outdated H-1B Visa to attract the best & brightest to come to the U.S., from across the globe.”
The White House did not respond to a request for comment, but Press Secretary Sean Spicer said in March that the opportunity still remained open for Congress to take action. A Senate bill to reform the H-1B program sponsored by Iowa Republican Chuck Grassley and Illinois Democrat Dick Durbin was introduced in January; the bill has been praised by both left- and right-leaning immigration experts.
Notkin said, however, that “the writing’s on the wall,” spelling out what the Trump administration aims to do with H-1B visas: tougher crackdowns on specific companies, and a more restrictive application process.
“I could see USCIS making a mess out of this,” she said. “We shall see. It will be an interesting H-1B season.”
