Hundreds of thousands of immigrants, mainly from India, may never get their green cards. Now some are losing their temporary work visas while waiting.
That’s not just bad news for the workers. It also affects employers, mostly in high-tech industries, who say they have demonstrated they need high-skilled foreign workers.
The situation is an outgrowth of a decadeslong backlog in green cards combined with tough new U.S. immigration policies that implement a 2017 executive order directing the government to ensure that businesses prioritize the hiring of U.S. workers.
As the Trump administration continues to clamp down particularly hard on the H-1B skilled guestworker visa program, workers who’ve been on those visas for years are suddenly seeing denials. And that’s been happening with increasing frequency to immigrants who’ve already been approved for green cards, but who need to maintain their temporary visas during the wait.
Two recent examples highlight the situation: both workers were approved for green cards after their employers conducted a labor market test and determined there were no qualified U.S. workers available. After getting a denial of an H-1B extension, the workers are scrambling to find alternative temporary visas while they continue their long wait for green cards to become available.
An Indian doctor recently had his H-1B renewal application denied despite successfully renewing the visa two or three times in the past. Neither his job nor his employer changed in that time, immigration attorney Jennifer Minear of McCandlish Holton in Richmond, Va., told Bloomberg Law.
Robert Cohen of Porter, Wright, Morris & Arthur in Columbus, Ohio, represents a Fortune 200 company that has employed an information technology storage engineer since 2014. His H-1B renewal was just denied, Cohen said.
But someone on an H-1B visa who has been approved for a green card doesn’t have an automatic right to stay in the country. U.S. Citizenship and Immigration Services is focused on preventing fraud in the H-1B program and ensuring that the visas go to the best and brightest, and that includes scrutinizing the H-1Bs of workers also waiting for their green cards.
“It is expected that individuals who no longer have a lawful basis to remain in the United States will return to their home country,” USCIS spokesman Michael Bars said in a statement provided to Bloomberg Law.
Once its policy guidance goes into effect, “USCIS will take appropriate steps to initiate the removal process when these individuals do not depart,” Bars said.
Mark Krikorian, executive director of the Center for Immigration Studies, echoed those comments.
“We have, for too long, treated the H-1B program as a tryout immigration program instead of the temporary fix, the temporary patch that it was supposed to be,” he told Bloomberg Law. Krikorian’s organization supports lower immigration levels.
Taking a second look at previously approved H-1B visas is “an important step away from the false idea” that getting an H-1B visa is an automatic ticket to a green card, he said.
No Deference to Prior Decisions
The backlog isn’t new, but the USCIS’s recent policy changes are affecting what the wait for a green card might look like.
“It’s a whole puzzle with multiple pieces,” said Minear, who serves as first vice president of the American Immigration Lawyers Association. All the policies together are making it harder for employers to hire and retain foreign workers, she told Bloomberg Law.
The “biggie” is a USCIS policy stating that the agency won’t defer to prior decisions when processing temporary worker visa petitions, Minear said. That means workers in the green card backlog, who must renew their H-1B petitions multiple times, could suddenly get a denial after years of approvals.
“We cannot rely on the government approving a case simply because it has approved the case in the past,” Andrew Greenfield of Fragomen, Del Rey, Bernsen & Loewy in Washington told Bloomberg Law. And a denial after years of employment can have a “devastating impact” on immigrant workers, their families, and their employers, he said.
Cohen said employers have demonstrated that they need the workers. “We have already made a determination that there are insufficient U.S. workers ready, willing, and qualified for the position,” he said. The agency shouldn’t turn around and strip the immigrant worker of the ability to stay when it’s been shown that no U.S. workers are being displaced, he said.
Krikorian, however, sees no problem with re-evaluating earlier visa decisions. “Maybe they should never have gotten the approval to begin with,” he said.
You can’t make the argument that an H-1B decision that may have been improper should just be renewed indefinitely, Krikorian said.
The USCIS said in an email to Bloomberg Law that it does take whether an H-1B visa holder has been approved for a green card into consideration, but only to the extent that it’s relevant for determining whether the person is eligible for the H-1B visa. Being approved for a green card allows someone to renew an H-1B beyond the regular six-year limit on the visa, but it doesn’t say anything about whether he or she qualifies in the first place, a USCIS official added.