If the Biden administration implements intelligent H-1B visa policies, it can avoid the Trump administration’s mistakes, save resources and help the U.S. economy, according to a new report. Bipartisan experts who served in high-ranking positions at U.S. Citizenship and Immigration Services (USCIS) say Donald Trump’s H-1B policies led to major operational inefficiencies and a poor use of adjudicators’ time that contributed to the backlogs and processing problems at the agency.
In recent testimony before the House Appropriations Committee, USCIS Director Ur Jaddou committed to improving processing times, reducing backlogs and implementing more rational immigration policies. Addressing USCIS’s approach in recent years to H-1B visas is likely a good place to start.
“During appropriations hearing, USCIS director Ur Jaddou offers some perspective on current immigration backlogs: In January 2017 when Trump took office, the total case backlog before the agency was 1.5 million,” reported Suzanne Monyak of Roll Call. “Now, that’s the number of work permit requests alone currently pending.”
The Biden administration plans a regulation to “modernize” the H-1B visa category. “If done correctly, revising H-1B policy could eliminate operational inefficiencies, free up resources for USCIS, direct adjudicators’ attention in a more sustainable fashion and improve the competitiveness of the U.S. economy and American businesses,” according to a new National Foundation for American Policy (NFAP) report by Leon Rodriguez, Lynden Melmed and Steve Plastrik. “The Trump administration’s approach resulted in policies that judges ruled to be unlawful, led to high denial rates for H-1B professionals and their employers, encouraged litigation, disrupted legitimate business activity and squandered USCIS resources.”
Leon Rodriguez served as the Director of USCIS from 2014 to 2017 during the Obama administration, Lynden Melmed was Chief Counsel of USCIS during the George W. Bush administration and Steve Plastrik was Associate Counsel for the USCIS Vermont Service Center. Rodriguez is a partner at Seyfarth Shaw LLP. Melmed is a partner with Berry Appleman & Leiden (BAL) LLP and Plastrik is a senior associate at BAL.
The Trump administration issued several memos and directives to adjudicators on H-1B visas. After judges ruled the policies to be illegal, Trump officials attempted to make the policies permanent through an October 2020 regulation. However, that regulation, too, was struck down.
Rodriguez, Melmed and Plastrik believe the Biden administration should take a different approach on H-1B visas. “Congress designated the U.S. Department of Labor (DOL), not USCIS, to investigate and oversee the labor market protections for the H-1B visa category,” they write. “By attempting to take on the duties of another agency, USCIS has engaged in questionable policy pursuits and expended vital resources.”
The authors note USCIS does not need to impose new restrictions on the H-1B category via memos or regulations since Congress has already put in place several significant restrictions: 1) numerical restrictions (over 70% of the H-1B registrations filed were rejected for being beyond the annual limit in FY 2022); 2) wage requirements (H-1B visa holders must be paid the actual or prevailing wage for comparable professionals, whichever is higher, and studies show H-1B scientists and engineers typically earn the same or more that U.S. workers); and 3) a variety of measures that include public postings, no use of H-1B visa holders during strikes or lockouts and others.
Rodriguez, Melmed and Plastrik are concerned with USCIS policies during the Trump administration that restricted what positions qualified as a specialty occupation and how an employer-employee relationship is defined.
“In formulating a new H-1B regulation, USCIS should avoid the Trump administration’s approach of narrowing what qualifies as a specialty occupation,” they write. “The Trump administration’s regulation would have narrowed the positions that qualify as a ‘specialty occupation’ to positions that ‘always’ require a specific degree that is directly connected to the duties of the position. That is not an accurate interpretation of the statute.”
Redefining what constitutes an employer-employee relationship has been another area of controversy and a significant waste of USCIS resources. “The most appropriate definition of an employer-employee relationship is the longstanding Department of Labor standard definition, contained in DOL regulation, that is also in the existing USCIS regulation,” write Rodriguez, Melmed and Plastrik. “That standard for an employer-employee relationship is easily applied: whether the petitioner ‘may hire, pay, fire, supervise, or otherwise control the work’ of the H-1B professional.
The Trump administration intensified the use of the 2010 ‘Neufeld’ memo that introduced a subjective and complicated 11-factor test to determine an employer-employee relationship (focusing on work at a customer’s location). That contributed to far higher denial rates for H-1B petitions and an increase in time-consuming—for USCIS and employers—Requests for Evidence (RFEs).
U.S. District Judge Rosemary M. Collyer ruled on March 10, 2020, in ITServe Alliance v. L. Francis Cissna: “The current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.”
A USCIS settlement in the case resulted in USCIS withdrawing the Neufeld memo and taking other actions. That restored greater rationality to the H-1B process and resulted in a dramatic decline in H-1B denials for initial employment (from 24% in FY 2018 to 4% in FY 2021, according to an NFAP analysis. See here.)
Rodriguez, Melmed and Plastrik urge the government’s approach to H-1B professionals working at a customer’s location to be based on common sense and the realities of the modern economy. “USCIS also should avoid creating a joint- or secondary-employment requirement, as was proposed in Department of Labor guidance issued by the Trump administration on January 15, 2021,” they write. “Requiring the petitioning employer and the customer to both file Labor Condition Applications with DOL and agree to the related obligations is not supported by the statutory structure created by Congress and goes against common sense.
“If a homeowner hires a landscaping company, does that make the homeowner also the legal employer of the worker sent by the company to mow the lawn? The operational and enforcement issues created by requiring multiple entities to ensure the wages, working conditions, benefits and other legal requirements for H-1B professionals would be insurmountable for most companies, particularly customers with limited knowledge of the worker. It could act as a de facto ban on H-1B professionals performing work at customer sites and is beyond the statute.”
They add, “The most effective way to impose accountability is via the petitioner rather than putting in place a diffusion of responsibility among multiple petitioners for each professional. This more effective approach would allow federal oversight to target the employer-petitioner for underpayment or any other alleged abuse of an H-1B professional.”
Rodriguez, Melmed and Plastrik recommend that USCIS:
– Eliminate Operational Inefficiencies and Avoid Litigation: “By narrowly defining what qualifies as a ‘specialty occupation’ and routinely questioning whether the stated employer who has hired and will pay the foreign national worker is the true employer of the H-1B professional, USCIS created unnecessary work for itself and its officers. This drained agency resources, increased processing times for routine H-1B visa petitions and for other types of benefits, and contributed to the agency’s ongoing funding issues. . . . Defending sustained litigation has sapped resources from USCIS, and the outcomes of lawsuits have forced the agency to backtrack repeatedly on its policies. Courts have struck down USCIS’s interpretations and guidance as ultra vires to Congressional intent and have blocked efforts to enshrine these policies in regulation. . . . The churn of litigation and policy backtracking consumed government resources and created uncertainty for employers, H-1B professionals and their team members and USCIS officers.”
– USCIS Should Streamline the Process: “USCIS should create manageable standards and processes and concentrate on streamlining the petitioning process for employers and the adjudication process for its officers. By avoiding additional paperwork and frequent back-and-forth between the agency and employers, USCIS can limit delays and dedicate resources efficiently. Policies that generate excessive RFEs should be scrutinized.”
– Create Predictability: “USCIS should strive to create predictability in the H-1B visa category. This would align with Congressional statutes aimed at creating stability for employers and H-1B professionals, such as features in the law that allow dual intent, extensions for H-1B professionals pursuing green cards and job portability. . . . These solutions should work toward maximizing resources and flexibility for USCIS to assist the agency in working through its backlog in other case types and related funding issues.”
An NFAP analysis of EMSI data found “more than 1.5 million job vacancy postings in computer occupations (as of December 6, 2021) . . . close to 30 times more available jobs in computer occupations than H-1Bs who fill such jobs annually.” USCIS data show the median annual salary for H-1B visa holders was $101,000 in FY 2020 and $108,000 in FY 2021, with approximately two-thirds having earned a master’s degree or higher. The idea that H-1B visa holders are “cheap labor” or have made it impossible for U.S. workers to find jobs in tech fields is a myth.
“Does the Biden administration wish to be associated with the anti-immigration approach of the Trump administration or to steer its own path on high-skilled immigration policy?” ask Rodriguez, Melmed and Plastrik. “The administration can . . . eliminate operational inefficiencies, improve the adjudication of H-1B petitions, enhance U.S. competitiveness and free up resources in an agency strapped for time and money.”