Insight

The Trump Administration’s Attack on Legal Immigration

The adjudication strategy achieved the change the Trump administration wanted to make to the H-1B program without having to amend the regulations.

Legal Immigration – Trump
Bennett R. Savitz

Bennett R. Savitz

January 31, 2018 01:54 PM

President Trump campaigned heavily on an anti-immigration platform. While there is currently a great deal of focus on illegal immigration and specifically the impending deadline for the Deferred Action for Childhood Arrivals (DACA) program, the Trump administration has made equally significant changes to curtail legal immigration that have largely gone under the radar. The main focus of this attack on legal immigration surrounds the H-1B program, which allows U.S. employers to hire 85,000 foreign professionals each year. This remarkably small number of jobs has created a disproportionately large backlash against the entire program by the Trump administration.

Since the H-1B category is both statutory and regulatory, much of the program can’t be altered without congressional action. However, the Trump administration has taken steps to make it as difficult as possible for employers to use the program. The demand for the 85,000 H-1Bs far exceeds the supply, so there is a lottery every year to determine which employers will have their applications adjudicated. Once the 85,000 cap has been reached, the rest of the applications are rejected and returned unadjudicated. Thus far, the lottery has been truly random, but the Trump administration wants to change the random lottery system to a process that selects applications for employers willing to pay the highest wages for the highest skill level positions.

In order to try to combat the random lottery, the Trump administration implemented a strategy regarding the way the Immigration Service would adjudicate H-1B applications. A new phenomenon cropped up with last year’s H-1B applications: the Immigration Service issued requests for evidence (RFEs) for H-1B petitions where either the employer chose an entry-level wage, claiming that it was not appropriate given the complexity of the duties described in the H-1B filing, or questioning whether a position was professional because the selection of an entry-level wage, along with the proposed job duties and requirements, purportedly indicated that the position was not sufficiently complex to meet the professional requirements for an H-1B. The RFEs were issued in cases covering a wide array of occupations, including software developers, computer systems analysts, engineers (civil, mechanical, industrial, etc.), dentists, teachers, physicians, and accountants/auditors, all of which had routinely been approved every year since the H-1B category was created in 1990. Moreover, many of these cases were later denied despite responses that addressed all of the issues raised in the RFEs.

Thus, the adjudication strategy achieved the change the Trump administration wanted to make to the H-1B program without having to amend the regulations.

The Trump administration is now turning its attention to other legal immigration categories it wants to curtail, such as work authorization for certain spouses of people with green card cases languishing in multi-year backlogs, work authorization for foreign students who graduate from a U.S. university with a degree in a science, technology, engineering, or math (STEM) field, and limiting or eliminating many of the family immigration categories that have served to reunite families for decades.

While we can debate the merits of the various legal immigration categories the Trump administration is attacking, there is no denying that the Trump administration is employing a deliberate, comprehensive strategy to curtail legal immigration to the extent possible without changing the laws themselves. For those who still believe that the United States should continue to be a nation of immigrants, these recent developments should be alarming.

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Bennett Savitz has practiced exclusively in the area of immigration law since 1994 and founded Savitz Law Offices (ImmigrationOptions.com) in 2000. He has served as the chapter chair of the New England Chapter of the American Immigration Lawyers Association (AILA) as well as on several local and national AILA committees, helping shape policies and procedures for the entire Immigration Bar. He is a frequent speaker and writer on various aspects of immigration law. Since 2008, Bennett Savitz has been selected as one of Boston’s Best Lawyers in immigration law by The Best Lawyers of America©.

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