IN NOVEMBER OF 2018, Usha and her husband Sudhir received the news they never expected: the United States Citizenship and Immigration Services declined to extend Usha’s work visa, meaning the couple and their daughter would have 180 days to leave the country before the US government would consider their presence to be unlawful.
The notice hit the whole family like a punch to the gut. Eight years before, Usha and her daughter had moved from India to New Jersey to join Sudhir, who was already living in the United States, pursuing a master’s degree in computer science. Both Usha and Sudhir landed jobs as quality assurance analysts for IT outsourcing firms, relying on so-called H-1B visas, which are reserved for specialty occupations. Before coming to the US, Usha had earned a bachelor’s in math and physics, and a master’s in political science. They’d bought a home, paid their taxes, and enrolled their daughter, who’s now 16, in school. Usha had been approved in the early stages of the green card process, and had successfully extended her H-1B visa twice before.
Nothing had changed about her job, her skillset, or her educational background since the family started their lives in the United States. And yet, when she tried to renew her visa a third time last year, the government denied her, arguing that her job was not considered a specialty after all. “I’m not doing anything different now,” says Usha, who agreed to speak on the condition that WIRED wouldn’t publish her last name. “What makes them say today that I do not have a specialty?”
Usha is one of thousands of current US tech workers who have had their visas suddenly rejected thanks to new policies implemented by President Trump’s administration. Since 1990, the H-1B program has enabled US companies to employ foreign workers on a temporary basis for jobs that “require the theoretical and practical application of a body of highly specialized knowledge.” These visas are reservedfor people with at least a bachelor’s degree in their specialty, or some form of equivalent training, and they’re intended as a backstop for employers who can’t find Americans to fill the position. The government issues just 65,000 of these visas per year, with another 20,000 set aside for people who have gotten a master’s degree or higher in the US. Due to the high demand for tech skills, H-1B visas have always been both coveted and competitive. In 2018 alone, companies filed419,000 petitions for both new and continuing visas. But over the last two years, new research finds, denial rates across both categories have spiked dramatically.
According to a recent analysis by the National Foundation for American Policy, a nonprofit that studies immigration, the denial rate for applicants like Usha who are trying to extend their visas grew from 4 percent in 2016 to 12 percent in 2018; the rate climbed even higher, to 18 percent, through the first quarter of 2019. When it comes to new employment, meanwhile, USCIS has more than doubled the share of petitions it turns down, from 10 percent in 2016 to 24 percent in 2018. In the first quarter of 2019, the denial rate was 32 percent. This is despite a steady decrease in the total number of new applications under President Trump.
“I think the most striking thing is the change in denial rates has happened without any new law or regulation that many people feel would be necessary to have allowed an agency to deny so many applications in a legal manner,” says Stuart Anderson, executive director of the National Foundation for American Policy and a former staffer on the Senate Immigration Subcommittee.
Instead, the Trump administration has enacted these changes solely through executive power. While campaigning to become president, Donald Trump promised to overhaul the H-1B visa program, which he argued made it too easy for businesses (including his own) to hire foreign workers and pay them less money than American ones. During his first months in office, President Trump signed the so-called “Buy American, Hire American” executive order, which sought to prioritize visas for the “most-skilled or highest-paid” workers.
That order has led USCIS to look more critically at third-party outsourcing firms and reassess whether certain work and educational experience really does constitute a specialty. Later on in 2017, the agency also instructedofficials not to defer to prior decisions when assessing whether to extend someone’s visa, reversing policies that existed under previous administrations. Taken together, these changes have led to an uptick in denials across all of the top H-1B employers, including tech giants like Amazon, Microsoft, Google, Apple, and Facebook, as well as top outsourcing firms like Infosys and Cognizant.
That’s not to say the H-1B visa program was flawless before these changes. Companies and lawmakers have been advocating for reforms to the system since long before Trump took office. For years, large outsourcing firms like Tata Consultancy and Infosys dominated the lottery that determines who gets visas. These companies flooded USCIS with applications and typically walked away with the lion’s share of approvals. These employers also happened to pay far lower wages than other tech firms for the same work. In some cases, including one instance at Disney, laid-off American workers were forced to train their foreign replacements. That’s not how the program is supposed to work, and it has been an animating factor behind calls to reform the system.
But recently, the balance has shifted away from outsourcing firms receiving the majority of new H-1B visas. In 2018, Amazon was the top recipient of new visas by far. Meanwhile, the outsourcing firms that once won the most new visas and clocked denial rates in the low single digits, saw their denial rates spike to more than 50 percent in the first quarter of 2019.
The Trump administration has proudly touted these changes as a success, noting that more people with advanced degrees from American universities are now being awarded H-1B visas.
“As part of our efforts to fulfill President Trump’s ‘Buy American and Hire American’ executive order, USCIS has made a series of reforms designed to protect U.S. workers, increase our confidence in the eligibility of those who receive benefits, cut down on frivolous petitions, and improve the integrity and efficiency of the immigration petition process,” USCIS spokeswoman Jessica Collins told WIRED. “It is incumbent upon the petitioner, not the government, to demonstrate that he or she meets the eligibility under the law for a desired immigration benefit.”
But these supposed successes obscure the toll these changes are taking on people like Usha, who have lived and worked in the US for nearly a decade and are now suddenly being told they’re unqualified to stay.
Dagmar Butte, a Portland-based immigration attorney who works with IT firms, says she began noticing the spike in denials shortly after President Trump took office. In 2017, she says she filed 16 applications on behalf of one client in the IT field, only to have them all rejected—a first in her nearly three-decade career. “I thought: Did I suddenly get stupid?” Butte says.
In Butte’s experience, the H-1B visa holders who have been hardest hit are systems analysts and quality assurance analysts, like Usha, who are employed through outsourcing firms. That’s partly due to new guidance USCIS issued on applications from companies that employ people on behalf of third parties. These applicants, Butte says, are increasingly being told that their jobs aren’t considered specialized, and yet those determinations appear to be applied unevenly.
Butte says she recently submitted applications for 16 systems analysts. Despite the fact that all of the applicants had the exact same expertise and educational attainment, two were denied. But Butte says it’s dangerous to challenge these denials on the basis that other, similarly skilled, applicants have been approved. “If I were to point that out, they would not approve the two denied cases, they would just reopen and deny the 14 approved cases,” Butte says, adding that that has happened to some of her firm’s clients.
“When the denials come, it’s devastating,” she says. “They leave everything behind. If they have bought a house, they leave them behind. If they have furniture and belongings they leave them behind.”
When Usha’s extension was denied in November, it upended her entire life. Usha had to stop working immediately. As a result, the family lost their insurance, and Usha says she hasn’t taken her thyroid medication since February. Her license expired, and without a visa, she can’t get it renewed. That means she also can’t drive. Sudhir, whose H-1B visa expired in October 2018, was relying on a so-called H4 visa, for the spouses of H-1B holders. When Usha was rejected, he lost his status, too, which means he can’t work, either. Their savings have dwindled to “almost zero,” Sudhir says. All the while, their deadline to leave the country, April 30, has drawn closer.
Last December, Usha filed a lawsuit and a motion for a preliminary injunction that would at least allow her to maintain her legal status while the suit is ongoing. Her lawyer, Jonathan Wasden, is arguing that by making an end run around Congress, these new rules violate the Administrative Procedure Act, which governs the creation of new regulations. “You’re seeing people who have been on H-1B for a long time and have multiple successive approvals and now all of a sudden they’re getting denied,” Wasden says. “They’re not allowed to create new binding rules without going through the regulatory process.”
Wasden says the government has repeatedly postponed the case, which was also held up by the shutdown earlier this year. In the meantime, the court has requested additional evidence of the family’s financial losses before deciding on the preliminary injunction.
With less than a week to go before their time runs out, Sudhir and Usha say they still don’t have a backup plan. They sold their home in India to buy their home in New Jersey. They have bills piling up in the US and no jobs lined up overseas. “We’re just begging for time,” Usha says.
But, ultimately, it’s their daughter who worries them most. She’s finishing her junior year of high school, and getting ready to apply to colleges. Johns Hopkins University is her dream school, and her parents proudly boast that she scored a 1500 on the SATs earlier this year. If the family has to leave the country at the end of April, though, they will have to pull her out of school. She wouldn’t be able to graduate with her friends; instead, she would be halfway around the world, dropped into an unfamiliar school system in the middle of the year, and would have to go through an entirely new visa application process if she wanted to return for college.
Like any parents, Usha and Sudhir wanted to provide a good life for their daughter. So they came to the United States, and they did so legally—something President Trump has said in other contexts matters. “We’ve been working. We’ve been paying our taxes. We’re good immigrants,” Sudhir says. “We wouldn’t have expected it to happen to us.”