After the latest Policy Memorandum affecting Permanent U.S. Residence Eligibility for EB-5 investors with Non-immigrant Status, it will also become harder for tech companies to hire H-1B workers due to President Trump’s “America First” agenda.
The earliest newly approved visa holders can start working is October 1st. On September 11, the United States Citizenship and Immigration Services (USCIS) suspended premium processing for H-1B visas until February 19, 2019.
Changes in Expedited H1B Visas
H-1B visas are granted to highly skilled foreign workers and–more often than not–requested by Silicon Valley tech companies. Previously, the premium processing of H1B visas allowed tech companies to pay an additional fee to expedite their H-1B visa requests. This way they would receive a resolution within two weeks. With the suspended premium processing, even though processing times could vary between facilities, now these companies can expect to wait anywhere from three to nearly eight months to hear back about a case, according to USCIS.
The agency said it will consider making exceptions to this rule on a case-by-case basis where there is “severe financial loss to company or person,” emergencies, or humanitarian reasons, among other criteria. The rule change primarily affects new visa applications. This means that current H-1B visa holders applying for a renewal or switching jobs will also likely face delays. However, it should not impact their ability to continue working, as long as they stay in the U.S. (A valid visa is required for travel abroad.)
New H1B Visa Timelines
In the light of these recent events, the H1B visa process will take significantly longer and will be more cumbersome for new applicants and employers of highly skilled immigrants. Here are other changes to the H-1B system that are liable to impact both who and how you hire:
1) Increased scrutiny.
Since President Trump took office and introduced his “America First” agenda, which prioritizes American workers and products, the U.S.’s immigration policies have tightened. In the case of H-1B visas, the direct result is added scrutiny and a 45 percent surge in Initial Requests for Evidence (RFE) to support an application’s eligibility.
2) Faster denials.
USCIS officers were also granted full discretionary power to deny a visa application even without first sending an RFE. This means that employers and employees may not have a chance to submit additional evidence to support an H-1B visa application before it gets denied. This is particularly significant given the surge of RFEs issued over the past year.
3) Higher fees.
4) More deportation proceedings
In July, USCIS updated its guidance for when the agency may issue a Notice to Appear, a summons to stand before an immigration judge, which may result in deportation. This new policy, which has not yet been implemented, expands the criteria used to determine when USCIS is required to issue a notice, and would affect many visa holders, including H-1Bs.
According to the guidance, if their petitions are not approved, legal immigrants applying for a renewal or new type of visa might receive a notice (triggering deportation proceedings). Visa holders whose applications are denied could be forced to meet with an immigration judge.
USCIS will also issue a Notice to Appear if a visa holder “has committed acts that are chargeable as a criminal offense” or is convicted or charged with a crime, “even if the criminal conduct was not the basis for the denial or the ground of removability.”
It’s unclear when this policy will actually kick in. A USCIS spokesman says the agency is waiting until issues with operational guidance have been resolved. In the light of these increased difficulties, future H1B applicants might start looking towards the EB-5 program as a better and faster option for their green card.