Trump admin lost H-1B visa fight in its dying days

The denial rates of FY 2020 were not an exception but a trend emerged under President Donald Trump, who despite being a user of H-1B visa as a businessman, sided with immigration hawks.
People drive near Capitol Hill in Washington, DC. (AFP)
People drive near Capitol Hill in Washington, DC. (AFP)
Updated on Aug 30, 2021 10:33 PM IST
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By Yashwant Raj I Edited by Amit Chanda

The Trump administration lost its fight against H-1B visas - used by US companies to hire foreign workers for high skilled jobs, most of them from India - in its dying days.

It was beaten by US courts.

In the last two quarters of financial year 2021 - from October 2020 to March 2021, most of which was Trump administration - the denial rates of new H-1B visas went down to 7.1% from 28% over a comparable period in 2020, says new research from the National Foundation for American Policy (NFAP), a non-partisan think-tank, based on data published by the US Citizenship and Immigration Services (USCIS).

New or “initial” H-1Bs are fresh employment cases that count against the congressionally-mandated annual cap of 85,000, and not renewal of existing employment (H-1B is granted first for three years and then for a maximum of another three years).

“The credit goes to the business associations, companies, universities and attorneys who fought the Trump administration’s H-1B policies, as well as the judges who were willing to listen to the arguments for why the policies were unlawful,” said Stuart Anderson, NFAP executive director.

The denial rates of FY 2020 were not an exception but a trend emerged under President Donald Trump, who despite being a user of H-1B visa as a businessman, sided with immigration hawks of his administration to crack down on the work programme.

The denial rate was 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015 and the report suggested that the FY 2020 denial rate would have been much higher but for the court rulings that kept the denial rate low in the fourth quarter.

“The Trump administration managed to carry out what judges determined to be unlawful policies for nearly four years, illustrating the limitations of relying on the court system to prevent restrictive immigration policies,” the report said.

The denial rate for “continuing” H-1B petitions - essentially renewal for existing employees - was 3% in the first two quarters of FY 2021, compared to 7% in FY 2020 and as high as 12% in FY 2018 and FY 2019. NFAP research showed the USCIS turned down only 3% of H-1B petitions for continuing employment in FY 2015, 5% in FY 2017.

The trump administration sought to make its H-1B policies that had been tried through executive orders lawful through an “interim final rule” in October 2020. The rule was, however, struck down by a court for violating the Administrative Procedure Act, the NFAP report said, adding that companies and universities said the regulation would have made it nearly impossible to employ H-1B visa holders.

H-1B policy changes brought by the Trump administration have been costly for employers. An NFAP analysis estimates that a policy change announced by the USCIS in 2015 may have cost employers approximately $600 million a year, or more than $3 billion, in legal costs since 2015.

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Monday, October 18, 2021