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Challenges to Employment-Based Immigration: Piecing Together the Invisible Wall Brick by Brick

August 14, 2018

While the Trump administration continually vocalizes its intolerance of illegal immigration, it has been quietly and effectively working to build an "invisible wall" to block legal immigration. One major avenue of legal immigration this invisible wall has hit is employment-based immigration.

The business community has seen an unprecedented increase in scrutiny of petitions for employment-based benefits because of policies implemented in line with President Trump's "Buy American, Hire American" executive order.

To name a few examples of this increased scrutiny: screening procedures of nonimmigrant petitions for skilled workers have been radically heightened, the number of 'Requests for Evidence' (RFE) relating to issues of ability to pay and demands for full audit documents to the Department of Labor have skyrocketed and new interview requirements for employment-based sponsored immigrant visa applicants have been implemented in the United States. There are also viable administration proposals to eliminate H-4 work authorizations for spouses of H-1B workers, which might take effect in the near future.

The U.S. immigration system is already heavily overburdened and the increased number of Administrative Processing (AP) referrals is only compounding the ever-growing delays and unreliability of the legal immigration process. AP is a general term the Department of State uses to label visa applications that meet basic eligibility requirements, but may need further background or security checks. Because AP referral is subject to the discretion of consular officers, this process is a quieter method to limit legal immigration.

Based on the American Immigration Lawyers Association's indication that there has been an increased number of referrals for AP and an increased holding time for those cases, this discreet method of scrutiny has been an effective block to legal immigration. Since last year, most cases marked for AP were denied; moreover, visa applicants are often not told why their cases were referred for AP.

Further, consular officials have been denying and transferring cases back to U.S. Citizenship and Immigration Services (USCIS) without explanation, or, in some instances, without even interviewing visa applicants. This indicates a clear bias to deny applications without appropriate due process for most immigrant visa applicants. This trend also forces USCIS to re-review already adjudicated cases, wasting valuable resources.

The implementation of the October 2017 mandate of all employment-based green card applicants to attend in-person interviews at USCIS field offices only compounds the backlog problem. At these interviews, applicants are often handed RFE on previously submitted documents. Sometimes, applicants are forced to wait while USCIS conducts an extended review for over a year before issuing a decision. The family-based cases already in the pipeline are suffering further backlogs.

These policies have already impacted the number of H-1B petitions received (dropping for the first time in five years), international student enrollment (down 4%) and the number of tourists coming to the United States. Between the first quarters of 2016 and 2017, the U.S. National Travel and Tourism Office reported a 3.8% drop in visitors to the United States, meaning a loss of thousands of American jobs and billions in revenue.

Essentially, while President Trump purports to put "America First," the administration's immigration policies are not only impacting the nation's global status, but they are also hurting the U.S. economy and harming American businesses.

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