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H-1B visa: What happened in US immigration this week?

Two decisions that made getting H-1B visas difficult have been put on hold for 60 days, awaiting review.

January 31, 2021 / 12:52 PM IST

The Biden administration is moving to reverse the protectionist policies of former President Donald Trump. Starting with signing the immigration bill on January 20, the administration has taken steps to ensure that some of the decisions on H-1B visa holders are rescinded.

These include the withdrawal of conditions that makes it tough to qualify for H-1B visa, a favourite among Indian techies. Two policies that changed H-1B rules—the selection of applications based on wages and increased wages for the visa holders—were put on hold for 60 days awaiting review.

There will clearly be more such reforms in the offing like doing away with the country cap for employment-based green cards, say experts.

However, the process will take months if not years to be implemented. In the meantime, American research group Brookings has suggested four ways the Biden administration can improve employment-based immigration in the US without the Congress.

This is important because it is taking longer to process visa applications of due to COVID-19. The idea, the report says, is to make the process smoother and easier for students and also H-1B and L-1 visa holders.

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What are the four ways?

Remove impediments

The Trump administration created hurdles, making visa processing difficult. “These impediments have slowed processing times, increased requests for evidence (RFEs) and denials, and placed an undue burden on immigrants who wish to live and work in the United States,” said the report.

This resulted in decreased employment-based immigration. The research report by the US think tank National Foundation for American Policy noted that the denial rates for fresh H-1B visas stood as high as 58 percent during October to March 2020 for some companies compared to 1-5 percent rejection rate in FY15 for the same period.

The Brookings report said unnecessary policy impediments should be removed. This includes the request for evidence (RFE) when processing visas, where the US citizenship and immigration services (USCIS) asks for additional documentation.

The USCIS sends RFEs by posts. Because of the coronavirus outbreak,  it took a month or more for RFEs to reach the recipient.

“The increase in and delay from RFEs makes planning for hiring and retention more difficult. To ensure consistency and reduce processing time, RFEs should be tailored to the evidence presented, and be detailed enough so it is clear how to respond. USCIS should also email RFEs,” the report said.

Improve predictability

Over the last few years due to uncertainty around visas, the number of students pursuing education in the US came down by 4.4 percent in 2019-20. This also resulted in a significant reduction in Indian IT firm’s dependence on H-1B visas over the last four years.

“Unpredictability surrounding this ability to remain in the United States would deter international students from deciding to study here with significant negative implications for US colleges and universities,” the report said.

The report said the immigration agencies should promote predictability by laying out guiding principles and clear guidance.

Resume use of discretion in meritorious cases

The US immigration law is complex. It is not uncommon to get your visa denied for simple errors such as ticking the wrong check box or forgetting to check one by the employers when filing the form. Though these errors are not common, they do happen, said Brookings in the report.

In these cases, the applicant might lose their status to stay in the US.

This would especially impact students, who are in the US and are unable to afford to go back to their home country to start the process again.

In such instances, the think-tank suggests that immigration agencies use discretion for such applications. “…the use of discretion for applicants where there is a simple clerical error with no pattern of mistakes. This would provide a streamlined alternative to travel or to avoid the cumbersome and lengthy process of reinstatement for students,” the report added.

The new administration should also instruct USCIS to waive interviews and biometrics as appropriate or to allow modern technology such as electronic signatures or video interviews, the research report adds.

Communication and customer service

Immigration experts would point out how cumbersome it is to navigate the US immigration process. The constantly changing rules under the Trump administration made it more difficult for foreign students and workers.

“One might assume that international students and workers might not need help, since many are highly educated and English speaking. However, with the complexity of immigration law comes a real need for customer service from benefits agencies such as USCIS,” Brookings report said.

USCIS should enhance customer service, it said. This could include sending immigration notices and approvals via email or online and allow petitioners to do the same. Adding more agents and training them better, so that they are available to answer customer’s questions. Faster processing so that employers and the petitioners would know if the petitions are approved or denied so that they can prepare themselves accordingly.
Swathi Moorthy
first published: Jan 31, 2021 12:52 pm

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