USCIS Threatens to Destroy H-1B by Redefining “Specialty Occupation”. What Happened to Trump’s “Merit-Based” Hypocrisy?

May 4th, 2018

The following is an expanded version of my initial comment below, including some observations about the larger context of the Trump administration’s assault on the H-1B visa program as part of a concerted attack against other types of skilled and professional immigration, and legal immigration in general.

Around the beginning of this year, the Trump administration launched an intense and well-publicized attack on America’s legal immigration system by calling for the abolition of “chain migration”, i.e. extended family immigration (which Trump referred to as “horrible” in a December 29, 2017 tweet) and the Diversity Visa (DV) lottery.

Family immigration has been one of the main pillars of America’s legal immigration system for the past 50 years, and the DV lottery has enabled over a million immigrants from every part of the world to obtain green cards within the past two decades.

While both these programs very arguably had their origins in attempts to preserve at least some of the mainly white dominance in legal immigration that had been in effect prior to the landmark civil rights era 1965 immigration reform law, their actual effect was to open America’s legal immigration system to people from every part of the world, without discrimination based in race, color, religion or national origin, in contrast to the previous openly racist, “Nordics”- only 1924 immigration act which had been in effect for the previous 40 years.

In proposing to abolish these two important race-neutral immigration programs, Trump called for a “merit-based”immigration system instead, and proposed a 4-point framework which was purportedly designed to accomplish that goal. He also strongly supported two Congressional proposals, the so- called RAISE Act in the Senate, and a bill introduced by Representative Bob Goodlatte (R-VA) in the House, both of which would have ostensibly accomplished the same purpose and which were obviously designed to make drastic cuts in legal immigration from outside Europe.

However, while vigorously touting “merit-based” immigration as the cornerstone of his immigration policies for the future, Trump has also been hypocritically trying to undermine skilled and professional immigration, especially H-1B, which, ever since it assumed its present form in 1990, has been the essence of what merit-based immigration means.

The H-1B visa, which is another important avenue to opening America’s gates to qualified immigrants from every part of the world, and is especially popular with well-educated and innovative IT professionals from India and other Asian countries, has long been under attack by immigration opponents, on the specious grounds that these professionals allegedly take jobs away from qualified Americans by working for lower wages.

This charge has been shown by studies to have no more truth than Trump’s baseless charges that Hispanic immigrants have a higher crime rate than native-born Americans (while studies have also shown that the opposite is true).

Nor is the H-1B visa by any means limited to professionals from India or in the IT industry. It is used by college graduates from all over the world with bachelor degrees (or equivalent) working in finance, education, design, marketing, and a wide variety of other “specialty occupations”.

Trump’s own hostility to the H-1B visa is relatively recent. He initially supported this program at the beginning of his campaign and also defended Asian professionals working in Silicon Valley, many of whom are in H-1B status, in a 2015 interview with then Breitbart News Editor (and now Trump’s ousted former top adviser) Steve Bannon, who had attacked these professionals on explicitly racial grounds.

https://www.vanityfair.com/news/2016…ley-inaccurate

But suddenly, midway in his campaign, Trump, reportedly under prodding from his chief immigration campaign adviser, then Senator and now attorney general Jeff Sessions, suddenly changed his mind and called for the abolition of H-1B.

https://www.washingtontimes.com/news…ogram-in-wash/

True to his campaign promise (just as he also did not forget his campaign promises to take action against Hispanic, Muslim and other non-European immigrants), one of the first things that Trump did upon taking office was to launch an attack on skilled and professional immigrants in his so-called:Buy American-Hire American executive order.

However, while this attack was vague and limited to directing a “review” of H-1B and other skilled immigrant visa programs, USCIS has now issued the clearest possible warning, in the form of an April 4 letter from Director Lee Francis Cissna to Senator Charles Grassley (R-Iowa) one of H-1B’s longest and most persistent antagonists, that this visa may now be on the Trump administration’s chopping block.

The following is the most ominous passage from the letter, as far as the future of H-1B is concerned in this administration:

“USCIS has also announced that it is working on two proposed regulations to improve the H-1B program…The second regulation will propose to revise the definition of specialty occupation, consistent with INA Section 214(i), to increase the focus on obtaining the best and the brightest foreign nationals via the H-1B visa holders, and to revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” 
(Italics added.)

A direct link to the full letter is available through a thinkprogress.org article which describes a number of ways in which the Trump administration is trying to eviscerate the H-1B program:

https://thinkprogress.org/trump-immigrants-h1b-h4/

To any H-1B practitioner with even a moderate amount of experience in this field, the words: “revise the definition of specialty occupation” should be like a four alarm siren to a seasoned firefighter. Nothing is more central to the concept and the functioning of of the H-1B visa than the definition of a specialty occupation. Nothing, at least in this writer’s own more than 30 year experience as an H-1B lawyer, has been a bigger or more troublesome source of RFE’s for this visa.

The danger to the entire H-1B program inherent in revising the definition of a specialty occupation is underscored by the Orwellian reason that the letter gives for doing so:

“to increase focus on obtaining the best and brightest foreign nationals via the H-1B program”.

The real intent, of course, is to keep as many of the best and brightest foreign nationals out of the Unites States as possible, especially of they come from India and other parts of Asia, as well as Latin America, Africa and the Middle East.

The administration’s intent to try to destroy the H-1B program rather than to “improve” it, is also from the context of Cissna’s letter as a whole. The letter also states that USCIS plans to eliminate employment authorization for H-4 spouses and to “redefine” the employer-employee relationship, obviously to make it even narrower and more restrictive than recent USCIS memos have already done, especially in the area of off-site or third party employment.

The letter also mentions recent USCIS actions aimed at making H-1B extensions more difficult.

As Shakespeare’s Marc Antony says:

“I come to bury Caesar, not to praise him.

One might say the same thing about Cissna’s letter regarding the H-1B visa.

One is also reminded of the reason given in Trump’s four-point Immigration “Reform’ Framework for eliminating extended family immigration beyond the nuclear family, which was given as ostensibly to “Promote nuclear family migration”

https://www.whitehouse.gov/briefings…rder-security/

Just as Trump’s idea of “promoting” family immigration is to bar millions of currently eligible family members from coming to the US, his plan for bringing the “best and brightest” H-1B immigrants to America is to keep all but a few of them out.

Trump’s assault on skilled and professional legal immigration in general is
described in more detail in a chilling FWD.us report which can also be accessed through the thinkprogress.org link provided above.

Attacking skilled and professional immigration from India and other non-European countries is also, without any serious question, part of a larger long term agenda of turning the focus of America’s entire immigration system back toward the pre-1965 policy of favoring “Countries like Norway”, to quote Trump’s notorious January 11 statement (not to mention his European supremacist “Blood and Soil” Warsaw, Poland speech on July 6, 2017 – an openly white nationalist address which has received far too little attention in the US media, and which I have commented on previously).

The clear purpose is to maintain white majority dominance and supremacy through racial exclusion immigration policies for many more decades to come, long after the Trump administration itself becomes part of America’s past history.

See Yale Law School Professor James Q. Whitman’s January, 2018 article:

Trump’s quest to Make America White Again

https://www.project-syndicate.org/co…rier=accessreg

As Marc Antony also says:

“The evil that men do lives after them.”

To conclude, as indicated above, showing that a given job offer qualifies as a “specialty occupation” is already one of the most difficult and complex parts of the entire H-1B system. Last year, it was without doubt a major source of the politically motivated increase in openly biased RFE’s, and if last year is any guide, this year could very well be even worse.

In my next comment on this issue, I will discuss some recent examples of specialty occupation RFE’s from my own H-1B practice, including cases of egregious twisting and disregard of H-1B regulations and USCIS’s own well established policies and practices, and I will suggest some ways for dealing with this vital and contentious issue, which goes to the heart of the entire H-1B program.


Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping H-1B and other skilled and professional immigrants from diverse parts of the world receive work visas and green cards for more than 30 years. Roger’s email address is algaselex@gmail.com

This blog was originally posted on Immigration Law Blogs. It is shared here on ACEI-Global by permission from its author, Roger Algase.

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The Academic Credentials Evaluation Institute, Inc. (ACEI), was founded in 1994 and is based in Los Angeles, CA, USA. ACEI provides a number of services that include evaluations of international academic credentials for U.S. educational equivalence, translation, verification, and professional training programs. ACEI is a Charter and Endorsed Member of the Association of International Credential Evaluators. For more information, visit www.acei-global.org.

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