H-1B visa holders face uncertainty, overseas opportunities become new options

Last September, Uday Verma drove a rented U-Haul truck across the U.S.-Canada border, with his co-pilot being a Corgi-mix rescue dog named Dora. His destination was Toronto, where he would work as a software development engineer at Kira Systems. His wife and son later joined him by plane.

Verma came to the U.S. from India in 2006 to pursue a master's degree in computer science at the University of Iowa. After graduating, he worked at Interlink Network Systems Inc. under the Optional Practical Training (OPT) program on his F-1 visa. During this time, Verma and his wife welcomed their son. To extend his stay and continue working, he needed to apply for an H-1B visa.

The H-1B visa program allows foreign citizens, some of whom were educated in the U.S., to obtain work authorization and remain in the country. Spouses on H-4 visas and children under 21 can also reside with them.

H-1B renewals can pave the way to permanent residency, allowing many to start families, buy homes and cars, have children, and pay taxes in the U.S. According to 2015 data from the Pew Research Center, the U.S. has the world's largest number of college-educated immigrants, at 14.7 million, far surpassing second-place Canada with 4.4 million.

However, under President Trump's administration and the "Buy American and Hire American" executive order, attitudes toward immigration in the U.S. shifted. The application process became increasingly difficult for petitioners and employers, and previously routine H-1B applications faced strict scrutiny. The government stated it was adjudicating petitions fairly and efficiently on a case-by-case basis.

For people like Verma, staying in the U.S. became increasingly difficult as policies limited pathways to residency. He first received an H-1B in 2009, requiring renewal every three years. He successfully renewed in 2012 and 2015, but by then he had already applied for permanent residency and passed all labor certifications. Based on the conditions he had met, Verma could have renewed his H-1B indefinitely.

"Usually you don't need to do that, but for Indians, obtaining U.S. permanent residency is especially tricky," he said. In 2018, his H-1B was up for renewal again, "but the political climate had changed, and my view of the process had changed too." He felt uncertain and didn't want his family to endure the ordeal again. Despite having lived in the U.S. for over a decade, "I still felt like I had just landed from India," he said. If he were fired, he would be back to square one. The career, friends, family, and life built over years on an H-1B did not guarantee he could stay. So, he and his family left.

Computer-related occupations dominate the H-1B program. USCIS data shows that in fiscal year 2017, nearly 70% of petitions were in this field, with over three-quarters of petitions coming from India, followed by China at 9.4%.

"For example, an Indian-born person might wait nine years to get a green card," said Michael Nowlan, an immigration lawyer at Clark Hill. "Telling them in the sixth year, 'We've decided to change our interpretation and deny your H-1B,' is not just a fairness issue; it's cruel."

This Monday, a new H-1B application season began, with a lottery determining whether some foreign nationals can work in the U.S. The 85,000 cap favors those with master's degrees or higher from U.S. universities. Once selected, petitioners still face a lengthy adjudication process.

"I think there's a lot of anxiety because foreign nationals see more denials and requests for evidence in chat rooms and on the USCIS website," Nowlan said. "You can rely on your sponsor and skills, but it's a faceless agency, and you can't predict the outcome."

H-1B applications: A web of complexities

Under the Trump administration, the H-1B program became harder for both companies and foreign workers. Policy changes and shifts in the adjudication process left petitioners in difficult positions. Neena Dutta, lead attorney at Dutta Law Firm, called the H-1B program "a mess." She noted that at the regulatory level, USCIS "hasn't actually changed much," but internal policies are like "death by a thousand cuts." One major difficulty is the surge in requests for evidence (RFEs).

USCIS spokesperson Jessica Collins said in a statement to CIO Dive: "USCIS continues to adjudicate all petitions, applications, and requests fairly, efficiently, and effectively on a case-by-case basis to determine whether they meet all standards under applicable laws, policies, and regulations."

Immigration lawyers found that even "extremely ordinary cases" received RFEs, creating "new problems" for employers and foreign workers, Nowlan said, adding that RFEs seem to carry a "gotcha" attitude. For example, someone with a mechanical engineering degree applying for an H-1B at a mechanical engineering company would still face challenges.

"This creates enormous anxiety for foreign workers and adds extra costs for employers," Nowlan said. "And we're talking about cases that are flawless from a regulatory and historical perspective."

One major concern is that policy changes are eliminating the certainty companies need to bring in and retain foreign talent. In the past, lawyers could estimate start dates, but now it's hard to guarantee talent will arrive. "It's gotten so bad that many lawyers advise clients not to apply," Dutta said.

Consequences of losing an H-1B

Denials follow RFEs, and loss of work authorization follows denials. USCIS data analyzed by the CATO Institute shows that the denial rate for I-129 nonimmigrant worker petitions, including H-1B, rose from 16.8% in fiscal year 2016 to 22.6% in fiscal year 2018, an increase of nearly 35%.

If an H-1B petitioner loses their visa, they lose eligibility to work in the U.S. Nowlan noted that while appeals are possible, they cannot remain in the U.S. during the case's adjudication. This applies equally to those who have lived in the U.S. for years and are applying for extensions or changing employers.

Despite changes in adjudication policy, the H-1B lottery cap numbers have not changed. Other related visas are also facing impacts. USCIS has proposed eliminating work authorization for H-4 visas. Removing work authorization would directly affect the financial situation of H-1B holders' families, and some may consider moving to other countries as a result.

Collins said in the statement: "USCIS is reviewing all employment-based visa programs, including H-4 EAD. Until the rulemaking process is complete, no final decision has been made regarding H-4 spouse work eligibility."

The current state of the U.S. labor market

Despite the Trump administration's emphasis on buying American and hiring American, the U.S. public overwhelmingly supports high-skilled immigration. A recent Pew Research Center study found that eight in ten U.S. adults support high-skilled immigration; even among those who believe the U.S. should reduce or ban immigration, 63% support high-skilled immigration.

The U.S. unemployment rate is 3.8%; the unemployment rate in professional, scientific, and technical services is 2% (Bureau of Labor Statistics data). Low unemployment is accompanied by a large number of job openings. BLS data released in March showed 7.6 million job openings in the U.S. at the end of January, but only 6.3 million job seekers.

Richard Burke, President and CEO of Envoy Global, said low unemployment and a high number of openings are driving macroeconomic decisions toward more immigration. "Focusing on tech and STEM fields, U.S. universities are not producing enough STEM graduates to meet demand, while demand for tech jobs continues to grow," he said. "There's a huge gap between supply and demand," pushing companies toward foreign talent.

A recent Envoy report surveyed 400 HR professionals and hiring managers, and nearly half believed the U.S. visa application process has become more difficult, with increased RFEs being a factor. Canada is especially attractive to companies: 65% believe Canada's immigration policies are more favorable, and many companies already have offices there or are considering expansion.

Canada: A new destination for talent

Software demand is driving multinational companies to move R&D to countries like India, China, and Israel. Emerging talent hubs can ease the talent war and provide an outlet for dealing with immigration policies. Microsoft has warned it might move jobs overseas due to U.S. immigration policies, and its Vancouver development center could serve as a "safety valve," Microsoft President and Chief Legal Officer Brad Smith said in July.

Canada's immigration policies aim to attract more tech talent. The Global Talent Stream, launched in June 2017, accelerates visa applications for high-growth companies, reducing processing times from six months to 10 business days. Canadian immigration lawyer Jacqueline Bart said that regardless of whether it's the IT industry, the program can expedite applications for high-skilled workers, and workers can bring their families. Canada plans to bring in 350,000 foreign nationals annually until 2021.

Bart has handled more non-renewable H-1B cases where U.S. lawyers said they couldn't help. "H-1B holders are typically young, fluent in English, with master's or bachelor's degrees and significant experience," Bart said. "These conditions are highly valued in Canada's assessment system and allow for fast immigration."

Verma went to Canada through the Global Talent Stream. Canada was once a backup plan for his family, but it has now become a permanent choice. He has applied for points-based permanent residency, with an average processing time of up to six months, and expects a result by the end of May. Quickly obtaining permanent residency, which allows citizenship within four years, helps retain talent.

In Canada, Verma's new life comes with much less anxiety and more relaxation. "Work culture-wise, the pace is a bit slower here," he said. "In the U.S., everything feels like it should have been done yesterday. Unless you tell me the work was for yesterday, my work ethic is that it must be done. Here, there's not as much of that."

Still, applications remain oversubscribed

Despite the difficulties in H-1B adjudication, the program remains oversubscribed, with demand far exceeding supply. Each year, the number of H-1B petitions received is more than double the 85,000 cap.

"I have no doubt that some people hit bureaucratic issues and say 'screw America' and leave," said Steven Camarota, research director at the Center for Immigration Studies. But the U.S. remains attractive due to its efficient capital markets, top universities, tolerant attitudes, and relatively low tax rates. "Step back and look at the big picture, and you'll understand why so many people are lining up to get into the U.S., legally or illegally," he said. "That won't change in the short term."

What many worry about is the future talent pipeline, especially for high-skilled and educated workers. "The need for countries to attract high-skilled talent is incredible," Bart said. "Countries that aren't competitive and don't develop programs to attract foreign workers are falling behind, and right now, the U.S. is falling behind."