U.S. Citizenship and Immigration Services (USCIS) data show that the Trump administration's restrictive approach to employment-based immigration has resulted in a spike in denials of visa petitions and work authorization applications.
"The data for the first nine months of fiscal year (FY) 2018, which started in October 2017, show that denials for all manner of immigration benefits—travel documents, work permits, green cards, worker petitions, etc.—increased 37 percent since FY 2016," said David Bier, an immigration policy analyst at the Cato Institute, a think tank in Washington, D.C.
A Cato analysis of the first three quarters of FY 2018 USCIS data show a steady increase in the number of denials: 164,712 denials in the first quarter of the year; 196,849 denials in the second quarter, and 202,361 denials in the third quarter.
"This year has seen the highest denial rate of the years for which data is available since FY 2013," Bier said. "Denial rates increased from FY 2016 to FY 2018 in 19 of the 26 benefits categories for which the information was available for all years. These include the most important benefits categories like those for requesting foreign workers, applying for green cards, and asking for authorization to work or travel."
The data related to employment-related filings from FY 2016 to FY 2018 include:
- The denial rate for I-129 petitions for temporary foreign workers increased from 16.8 percent to 22.6 percent.
- The denial rate for I-485 employment-based adjustment of status applications from a temporary visa to a green card increased from 5.9 percent to 7.9 percent.
- The denial rate for employment authorization documents jumped 6 percent to 9.6 percent.
"Most dramatically, the rate of denial increased for advanced parole from 7.2 percent to 18.1 percent," Bier said. "Advanced parole gives immigrants on temporary statuses advanced permission to reenter the country after a temporary departure abroad. Skilled immigrants use advanced parole to travel abroad and avoid losing their pending green card applications."
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Employer Takeaways
The Cato analysis affirms that USCIS vetting of employment-related filings has gotten tougher.
"The Buy American and Hire American executive order gave the agencies broad discretion to scrutinize cases in ways we've never seen before," said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law. "Roles that were previously approved are now being denied. The scrutiny from USCIS has become almost unbearable, with H-1Bs the biggest target."
Watson said that recent policy memos have changed the way petitions are examined, with the biggest issues cited being related to educational requirements, whether offered jobs can be defined as specialty occupations, and the nature of the employee-employer relationship.
"It's not just USCIS," she added. "Department of State adjudication of E-2 treaty investor visas for foreign entrepreneurs had typically been favorable in past years. I'm starting to see denials now for reasons which had not resulted in denials in the past."
Bryan Funai, an attorney at law firm Masuda Funai in the Chicago area, said that it is essential that employers take care when filing to avoid requests for evidence or subsequent denials. "Applications must be thoroughly documented, clearly explained and filed with as much supporting evidence as possible," he said. Alternatively, prior to filing an I-129, "an analysis should be undertaken to determine if alternative visa options are available, such as the E visa or L-1 blanket," he added.
In addition to planning ahead as much as possible, Watson advised employers to be more proactive and vigilant. "Appealing to the AAO [USCIS Administrative Appeals Office] doesn't do any good because the policy comes down from the top, so more employers are thinking about lawsuits," she said.
But, she conceded that not everyone is comfortable suing the government, for fear of retaliation and the uncertainty to the business.
[Visit SHRM's resource page on workplace immigration.]
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