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The wall does not exist yet, but Trump has already erected new barriers for foreign workers

President Trump tours U.S.-Mexico border wall prototypes in San Diego. (Kevin Lamarque/Reuters)

President Trump has erected an “invisible wall” that makes it increasingly difficult for companies to hire skilled foreign workers, according to a new report from experts in immigration law, despite the president's call for a merit-based immigration system that prioritizes the admittance of people who are skilled and want to work. 

The hurdles in employment-based immigration put in place during Trump’s first year in office have already discouraged foreign workers from seeking jobs in the United States and American companies from recruiting overseas.

The number of petitions for “high-skilled” H-1B visas received by U.S. Citizenship and Immigration Services has fallen for the first time in five years, from 236,000 for the 2017 fiscal year to 199,000 for 2018, the report said.

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The report by the American Immigration Lawyers Association said businesses have been “hit with unprecedented scrutiny of nonimmigrant petitions for skilled workers, managers, executives and others.”

It identified a slew of new barriers for foreign workers and the companies that employ them, including a dramatic increase in requests for additional evidence and interview requirements in processing H-1B visa petitions, the dismantling of Obama-era rules to encourage immigrant entrepreneurship, and proposals to eliminate work authorization for spouses of high-skilled workers.

Immigration lawyers said the new policies related to employer-sponsored visas are creating hardships for businesses, which, given the low unemployment rates, are spending substantial time and money recruiting and hiring foreign workers with the right skills.

“The heightened standards and new interpretations that are now being used by USCIS to scrutinize and deny H-1B petitions are causing significant unpredictability for employers in staffing important positions,” said Marketa Lindt, a business immigration lawyer in Chicago and a vice president of the American Immigration Lawyers Association.

Critics of employment visa programs say they displace American workers and drive down wages. Companies say they need to import foreign labor to fill jobs that Americans are either not willing to take or don't have the skills to fill.

The policies hew to Trump’s “America First” rhetoric but contradict his stated desire, articulated during his State of the Union address in January, to move “towards a merit-based immigration system — one that admits people who are skilled, who want to work, who will contribute to our society.”

The White House did not respond to a request for comment.

R. Carter Langston, a USCIS spokesman, said his agency is committed to reforming employment-based immigration programs to benefit Americans as much as possible.

"USCIS is focused on ensuring the integrity of the immigration system through deliberative and fair adjudications all while protecting the interest of U.S. workers," Langston said in a statement.

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The Trump administration kicked off the “Buy American, Hire American” executive order last year by targeting the H-1B visa program used by many tech companies to recruit workers with science and engineering backgrounds. As part of that campaign, the administration directed the Department of Labor and the Department of Justice to step up its monitoring and enforcement of H-1B workers.

It also sought to end an Obama-era program designed to encourage foreign entrepreneurs to start businesses in the United States. The “start-up visa” was scheduled to take effect in July 2017. An estimated 3,000 foreign entrepreneurs who were pursuing cutting-edge research or had been awarded substantial U.S. investor financing were expected to benefit. But the Department of Homeland Security delayed implementing the program and, despite a December court ruling to start the program, its future remains at risk.

“Collectively, these actions have had a significant impact on our ability to attract innovators and the ability of U.S. employers to supplement their workforces with foreign high-skilled workers,” the report said.

U.S. Citizenship and Immigration Services last March also rescinded a 17-year-old guidance that recognized computer programmers as qualifying for a “specialty occupation” designation under the H-1B visa program. The agency said it made the change because specialty occupations require, at minimum, a bachelor’s degree but those who hold just an associate degree may be trained as computer programmers. The agency also more closely scrutinized the wages offered for H-1B positions to ensure they correspond to the complexity of the position being filled.

As as result, the immigration lawyers said, H-1B petitioners were deluged with requests for additional evidence that the wages being offered were appropriate and that the positions were actually “specialty occupations.” These additional requests were issued across a variety of professional positions, including engineers, accountants, lawyers and physicians. Through the first eight months of 2017, the agency issued 85,000 requests for additional evidence, a 45 percent increase from the same period in 2016, the report said.

"The added review and additional information gives us the assurance we are approving petitions correctly," Langston said. He said the percentage of petitions that require additional evidence has remained around 20 percent for each of the last three years, and the rate of approval continues to be above 90 percent.

Immigration lawyers say they expect the number of requests for additional evidence to grow, along with more denials of H-1B applications and extensions, further disrupting U.S. business operations. In February, just weeks before the opening for the 2019 H-1B lottery, U.S. Citizenship and Immigration Services said it would require more evidence for H-1B petitions involving third-party worksites, where the agency said significant employer violations are more likely to occur.

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The Trump administration has also announced its intention to revoke an Obama-era rule that allowed some spouses of “high-skilled” foreign workers to hold jobs in the United States. More than 104,000 spouses had already been granted the H-4 work permits as of last summer. The move to terminate the work permits would make it more difficult for U.S. businesses to retain top talent, immigration lawyers said, because many high-skilled immigrants would be deterred from working in the United States if their spouses were not permitted to work.  

The agency, in November 2017, also restricted the type of economist that could qualify for work in the United States, reversing a long-standing policy under the North American Free Trade Agreement that had granted special work status to certain Canadian and Mexican professionals. Under Trump, financial analysts, market research analysts and other marketing specialists with economics-related duties no longer qualify.

“This policy shift represents another attempt by the administration to restrict legal immigration by interpreting the law in an overly narrow manner,” the report said.

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Since 2012, the State Department has waived in-person interviews for nonimmigrant visa applicants who meet certain conditions, including Chinese and Indian nationals renewing “high-skilled” H-1B or “executive” L-1 visas who have already been thoroughly vetted and present a low security risk. But Trump suspended the interview waiver program in March 2017, with a few exemptions.

Immigration lawyers say the number of visa applicants quietly subjected to additional vetting without being given a reason has increased, along with the length of time that those cases remain in “administrative processing.” Applicants from the Middle East often experience delays of more than six months, with many cases taking more than a year, the report said. Such delays, it said, “disrupts U.S. business operations when key employees are unable to quickly return to the U.S. to resume employment.”

In addition, beginning in October 2017, all employment-based green card applicants must attend an in-person interview under an expansion of requirements for those seeking permanent residency. Previously, interviews for the majority of employment-based green card applicants were waived unless there was some indication of fraud. The additional interviews have lead to a delay in the processing of other naturalization cases, lawyers say.

“The invisible wall has risen quickly and will undoubtedly continue to rise higher,” the report said. “When the tide eventually turns and we start to move back toward our legacy as a ‘nation of immigrants,’ it will take years to chip away at the policies and rules that comprise the invisible wall, and years to undo the damage to our country and our reputation in the world.”