H-1B applications receiving extra scrutiny under Trump administration, data shows

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Foreign workers applying for visas are facing extra scrutiny under the Trump administration.
Foreign workers applying for visas are facing extra scrutiny under the Trump administration.M. SCOTT BRAUER/NYT

Some H-1B applicants are having a harder time getting approved for the coveted visa, according to data provided by the U.S. Citizenship and Immigration Services.

This data supports anecdotal claims from immigration lawyers across the country that, under the Trump administration, certain H-1B applications are being challenged far more than in years past. The scrutiny is coming in the form of “requests for evidence,” documents from the government asking lawyers to justify their client’s application.

According to the data, first reported by Reuters, there was a 45 percent increase of requests for evidence on H-1B applications received between Jan. 1 to Aug. 31 compared with the same period last year. At the same time, the number of applications received increased only by 3 percent.

The light-blue documents are standard in the H-1B application process when the government needs more information before approving a visa. The government also issued a similarly high percentage of requests for evidence during the Obama administration in 2009 and 2014.

What is different under the Trump administration, experts say, is that entry-level salaries are under special scrutiny: Officials at United States Citizenship and Immigration Services are asking lawyers to defend why the client is receiving a “Level 1” wage, the lowest salary the Department of Labor allows foreigners to be paid in a certain profession.

The data provided by the agency does not break down the reasons for the requests.

H-1B visas allow foreign workers with specialized skills to spend three to six years working at a sponsor company in the U.S. There are 85,000 visas allocated to for-profit companies through a lottery each year; these then require further approval before the applicant can begin working. The visas are reserved for “specialty occupations,” which means the job is so complex that it requires someone with a bachelor’s degree or higher.

Of the 500 H-1B applications filed by immigration attorney Emily Neumann that were chosen in the lottery, roughly 200 received a request for evidence — about double the amount compared to the previous year, she said. Half of those requests have to do with Level 1 salaries, she said.

“Not once in my 12 years of doing this have we ever gotten a request for evidence asking about a Level 1 wage,” she said.

In several requests for evidence reviewed by The Chronicle, immigration officials ask lawyers to defend why their client is being paid an entry-level salary if the position is so specialized that it warrants an H-1B visa.

Level 1 salaries are often given to new college graduates, or those just entering the workforce. A computer programmer in Santa Clara — where many of the world’s biggest tech companies are headquartered — on a Level 1 salary must receive at least $55,203 a year, compared to $117,416 if the programmer had a Level 4 salary.

Many companies, particularly those in Silicon Valley, rely on H-1B visas to staff technical positions and often pay well above the mandated levels. Facebook, for example, staffed 15 percent of its workforce with H-1B employees in 2016. However, critics say the program is rife with loopholes that allow companies to squeeze out American workers in favor of foreigners willing to work for lower wages.

The scrutiny of Level 1 salaries is consistent with the Trump administration’s desire to reduce the number of lower-paid foreigners from coming into the country, attorneys said, and it constitutes a significant shakeup to the H-1B program.

Trump “wants (the visas) to go to the best and brightest — highest skilled and highest paid,” Neumann said. “Which is totally reasonable, but that is not what the law says.”

León Rodríguez, former director of United States Citizenship and Immigration Services, said the agency was never directed to target a specific wage level during his tenure, which ended in January.

The agency uses “existing policy” to evaluate the H-1B applications, a spokeswoman has said. She did not specify the policy. The agency did not immediately respond to a request for comment on the data.

It is unclear how this scrutiny will impact the number of visas approved this year.

Trisha Thadani is a San Francisco Chronicle staff writer. Email: tthadani@sfchronicle.com Twitter: @TrishaThadani

Application numbers

More H-1B applications are receiving extra scrutiny in 2017 than in years past.


(Jan. 1 - Aug. 30)



Requests for evidence