After the 2016 election, speculation swirled around the vitality of the H-1B visa program, with many fearing its collapse.
Adjudication changes have induced a sense of concern and conservatism for companies looking for foreign applicants.
When the Trump administration introduced its Buy American, Hire American (BAHA) policy it was in stark contrast to the Obama administration's stance on hiring foreign talent.
"We came from a very philosophically different place," said Leon Rodriguez, attorney at Seyfarth Shaw and former director of U.S. Citizenship and Immigration Services (USCIS) from 2014 to 2017, in an interview with CIO Dive.
Instead, "the executive orders that were issued by President Obama, actually directed a number of actions to facilitate high-skilled immigration as opposed to impeding it and frustrating it," said Rodriguez.
But the USCIS is "committed to carrying out the President's Executive Order, and doing it in a transparent manner for the American people," according to Joanne F. Talbot, spokesperson for USCIS, in an emailed statement provided to CIO Dive.
"The BAHA executive order directs the protection of the interests of U.S. workers in the administration of our immigration system," Talbot said. "USCIS is at the forefront of the efforts to carry out the President's vision."
Still, despite the intentions of the current administration, experts worry those efforts might cause program turmoil.
"I think it's a little misguided, but I think it's a sincere belief that this is what really best guarantees the integrity of the application process," said Rodriguez. But "jobs will simply leave the United States, that fundamental point is correct."
The power of change
The timing of the announced changes is notably frustrating to companies and applicants so close to Monday, when the cap season begins. The changes include constricted rules for foreign contractors, the limbo standing of H-4 visas and a change in the power of attorney signatures for applications.
The change in signatures was announced mid-February, leaving little wiggle room for preparations. "Everybody had to go to putting original wet signatures on hard copies of applications and so it just increased the paper shuffling, said Sam Adair, attorney at Graham Adair, in an interview with CIO Dive.
The new form of required signatures labored the process even further just like the increased number in applications subjected to requests for evidence (RFE). "Last year we filed these applications April 1st and then it was after that that we started to see sort of shifting adjudication standard at the USCIS," said Adair.
Due to the expected shift, companies and their attorneys have become more aware of "all this risk" because "there are certainly more ways that they can scrutinize these applications," said Adair.
"We've definitely seen cases that would have likely gone through and been approved without even so much as a bat of the eye," said Adair, in comparison to previous years. Now, those same applications would be subjected to RFEs.
What employers are doing
Qualified applicants that had been previously accepted into the program in previous years are struggling to solidify their place. "We've seen cases that would have easily been approved in 2016 that were denied in 2017," said Adair.
And this is troubling for many companies in the tech industry, said Agiloft CEO Colin Earl. Though the Trump administration has been adamant that the restructured H-1B program will help cultivate the best foreign talent, Earl believes it will instead be "catastrophic" and could lead to "economic suicide."
Tech companies look to hire their workforce in a cascading manner. By hiring the most senior positions, more mid-to-low level positions can be filled by those qualified to do so. "Objectively, when there's a shortage of highly skilled workers," said Earl. "The jobs follow the workforce. It's that simple."
That is precisely what is happening. Despite the Trump administration's best efforts to maintain American jobs within the United States, companies that have on-boarded the talent they need are more inclined to preserve it and spend what they have to keep that talent.
Though the changes are presenting roadblocks for companies, they are not in fact causing too much of a deterrent for companies like Agiloft. A visa holder working for the software company was unable to renew his visa and yet "his job moved with him" when he returned to his home country, said Earl.
There is a widespread backing from major tech companies and their willingness to protect immigration in terms of policy advocacy.
However, they still have to be "much more cautious in terms of the petitions that they're willing to file and there are some positions that they're just not really comfortable moving forward with an H-1B sponsorship" compared to last year, said Adair.
America could face losing its economic grip
As an immigrant from Britain, Earl said, "I love this country more than any other, but to see it take this kind of action … is heartbreaking." Not only is this true on the part of individual applicants, but from the view of the United State's standing on the global economic stage.
"Other countries are building up a critical pool of tech talent and there's going to come a tipping point where the pool of excellence available in Vancouver or Toronto, exceeds that in Silicon Valley," said Earl. When that happens, "that's when the real pain begins to be felt."
In many ways, the denial of these applicants will only strengthen "the next generation of competitors to American companies," said Earl. If H-1B applicants cannot be accepted to work in the U.S., they will provide their skills to companies in India, China and Canada.
But American-based companies are already capitalizing on this trend. Many already have campuses built abroad.
Where do tech companies go from here
Restrictions on visas should be reserved for those "who can only command very low wages," but an "unlimited" number of visas for those qualified for more elite roles, according to Earl.
In terms of who is worthy of acceptance, the U.S. government and U.S. companies are not able to decide that on a purely objective level. There is, however, "another objective reference and it's money," said Earl.
That all comes down to how much employers are willing to spend on their employees and those who come from abroad. Right now, a company's willingness is rooted its decision to set up shop in foreign countries, pay legal fees and if needed, pay for rejected visa holders to continue their work in their native country or elsewhere.
Though the program at times feels as if it's on life support, if history serves as any type of indicator, there will be a mounting pressure to grow the number of immigrants harvested from the H-1B program from within Congress, according to Rodriguez.
Rodriguez, having experience inside and outside of USCIS, is "absolutely convinced" that the U.S. "actually need[s] a bigger program" to encourage more talented immigrants to apply.