You might assume U.S. employers facing a tight labor market would increasingly look to foreign talent to fill positions. However, the number of H-1B specialty occupation visa applications that employers filed on behalf of workers in the annual lottery has declined nearly 20% since 2016. The Trump administration is having a chilling effect on U.S. businesses looking to hire, but with the right legal team on your side, success is still possible.

Currently, Congress caps the number of H-1B visas available each year at 85,000. U.S. Citizenship and Immigration Services (USCIS) begins accepting H-1B applications six months before the start of the new fiscal year, which begins on Oct. 1. That means USCIS begins accepting H-1B applications on April 1.

Because the number of H-B applications have far exceeded the supply, USCIS holds a lottery in April once it receives enough to meet the cap. This year, USCIS will change the order in which it randomly selects petitions for specialty workers with a master’s or higher degree and all others. USCIS will first randomly select 65,000 H-1B petitions. Then USCIS will randomly select 20,000 petitions from among those submitted for individuals with a master’s or higher degree from an accredited U.S. institution. 

Employers submitted a record 236,000 H-1B specialty occupation visa applications for the annual lottery in 2016. Last year, the number of applications filed for the annual lottery dropped for the second consecutive year to 190,098 from 199,000 in 2017. Since 2016, the number of cap-subject H-1B applications has dropped by 19.5%.

 

Why the Big Drop?

President Trump recently said H-1B visa holders will have a path to citizenship. Still, anti-immigrant rhetoric and policies have been the hallmarks of Trump and his administration. Trump has blamed the H-1B program for displacing American workers and holding down salaries.

The Trump administration has altered how it adjudicates H-1B applications. Those changes have led to an explosion in Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). Moreover, USCIS shows zero tolerance for any mistakes—big or small—or missing documentation on H-1B applications.

“Before we had the benefit of the doubt being applied,” said William Kerr, a professor at Harvard Business School in an interview with the Indicator from Planet Money, an NPR podcast. “Now that benefit of the doubt doesn’t carry anymore.”

If you miss one part of the application, you’re “instantly derailed from the process rather than just being asked to complete the application and proceed forward,” Kerr added.  In many cases, derailed means “the deportation process begins.”

Moreover, USCIS is issuing RFEs to employers for information that previously was a given. For example, said Kerr, Fortune 100 companies are being asked for proof that they can financially afford to sponsor an H-1B worker.

 

Why It Matters

The result has been longer processing times, increased costs, and growing uncertainty. Employers are complaining that all this is disrupting business operations and causing anxiety to workers. And due to the anxiety and uncertainty, foreign professionals are increasingly looking for opportunities outside the U.S.

On the same NPR podcast, one Silicon Valley engineer said that his colleagues and friends both in the U.S. and abroad are looking to Canada and Australia to avoid the headaches and stress that comes with seeking—or renewing—an H-1B visa in the U.S. In fact, that engineer’s H-1B visa is up for renewal. For the first time, his employer warned him there’s a slight chance that USCIS won’t renew it. As a backup, he applied for permanent residence in Canada.

That trend spells bad news for the U.S. economy, according to Kerr. Facing labor shortages and few alternatives to the H-1B visa, companies risk losing the ability to hire the best and the brightest.

“For decades the U.S. has attracted the top engineers and entrepreneurs in the world,” Kerr said. But if the U.S. loses its edge for global talent, then the U.S. will sacrifice to other countries “the growth and innovation that would keep us on the leading edge.”

The Alcorn Immigration Law team can help your company stay on the leading edge. We continue to win H-1B visas for our clients despite more RFEs. We’ve maintained our 95-plus percent success rate among all of our clients. Reach out to us for a consultation.