BOSTON – For many foreigners wishing to pursue “the American dream,” applying for the H-1B visa is an inevitable process. The temporary visa allows foreign professionals with specialties to work in the United States, but it takes both skill and luck to get one.
At the root of these trends are two influences: the coronavirus and the immigration policies of the administration of former President Donald Trump.
Russell Swapp, a partner in the Boston office of international law firm Seyfarth Shaw, called the current situation a “macroeconomic story.”
“The Trump administration represented regulatory challenges and an intentional limitation,” Swapp said. “COVID has really closed the world off. “
The H-1B is a nonimmigrant visa, which means the person is temporarily in the United States and has permanent residence outside the country. It’s job-based, so employers have to offer a job first and then petition on behalf of the individual.
The selection process is structured like a lottery system; USCIS has a limited number of H-1B visas to be allocated each year. The agency randomly selects 85,000 applications for processing, of which 65,000 final visas are offered to bachelor’s degree holders and 20,000 are offered to master’s degree holders from accredited US institutions.
This makes it difficult to obtain an H-1B, even without a global pandemic and restrictive immigration policies. Scott Fitzgerald, Boston managing partner of immigration law firm Fragomen, said individuals have a 30-40% chance of being selected in any given year.
USCIS data indicates that most health care claims in Massachusetts, both initial and ongoing, were approved in 2019. The top four employers with the highest approvals and lowest denials in 2019 were all in STEM and primarily healthcare employers, with three hospitals at the top of the list.
On the flip side, the top five employers with the highest refusals were primarily in the consulting and accounting fields, with large firms like Deloitte, the Boston Consulting Group, and Bain & Co. in the mix.
These trends – a higher chance of rejection for consulting firms and a higher chance of approval for healthcare employers – were no longer strongly highlighted in 2020 with COVID in the mix. The pandemic has put an end to the freedom to travel and resulted in the shutdown of several industries, including consulting.
“Computer consulting companies, and it’s a generalization, but they tend to hire people from overseas,” Fitzgerald said. “In the last 18 months no one can get in… so their numbers are down.”
The process became even more difficult when the Trump administration temporarily suspended H-1B and other visas allowing foreign workers in June 2020, as part of an effort to limit the entry of immigrants to the United States. United.
Once again, the industry most impacted under the Trump administration was consulting, Swapp said. The government challenged the consultants’ petitions on two grounds: its educational requirements and its business model.
“The government felt, and it may sound silly, that the MBA was not professional academic preparation for a skilled worker, which is the definition of an H-1,” Swapp said.
Massachusetts is home to many biotech companies, and several of the largest consulting firms around the world are headquartered in Boston, such as the Boston Consulting Group and Bain & Co.
The state’s H-1B data over the past few years thus provides a vivid example of the trend in numbers following the pandemic and immigration policies.
“It’s interesting to see all of these companies like Amazon and Microsoft and Google taking big leases in Boston because they want access to talent,” Fitzgerald said, “but they’re going to have the same problem.”
As with everything else, 2020 has fostered some changes.
The total number of petitions processed declined in 2020 from the previous year, according to USCIS, and the total number of employer applicants also declined, with 2,815 employers filing in Massachusetts in 2019, compared to 2,380 in 2020.
What remains consistent are the two industries on opposite ends of the spectrum: healthcare and research continued to have a high ratio between the numbers of approvals and denials, and employers like the Massachusetts Institute of Technology and the Massachusetts General Hospital have received minimal refusals.
Likewise, consulting and finance firms like Deloitte and BCG surpassed denials in 2020.
Many healthcare employers, for the most part, have been able to find solace in exceptions such as the separate requirements for nonprofits and the national interest exemption.
The NIEs were essentially an exemption from the travel ban, said Fitzgerald, which allowed two types of people to visit the country: one was if someone was working directly to support infrastructure, and the other was working directly. to fight COVID.
“Anyone working in a hospital environment would, should be, per se, eligible for a national interest exemption,” Fitzgerald said, “and then companies like Wayfair and Amazon that are involved in infrastructure, involved in maintaining cogs in the economy., would also have a very good shot.
Regarding the other exemption, non-profit institutions, universities and affiliated universities are not subject to the H-1B cap. In other words, these employers do not have to participate in the lottery system. In 2020, Harvard and MIT were among the Top Employers with the highest approvals, and both had no initial rejections.
Gail Robinson, Immigration Officer at Boston Children’s Hospital, wrote in an email that they are not limited in the number of H-1B petitions they can sponsor and therefore can file at any time. year.
Boston Children’s primarily sponsors researchers, Robinson said, followed by doctors, healthcare workers and computer scientists.
Likewise, the employees sponsored by Mass General Brigham “consist primarily of healthcare providers and researchers with specialized skills,” according to a statement by media relations officer Mark Murphy.
Many healthcare workers are licensed, Swapp said, in that they have very specific academic preparation that is required.
“Therefore, it was less likely to be challenged by the government,” Swapp said, “and frankly, a lot of them [are] non-profit, so the government had other industries to target, and they spent their time focusing on the private sector.
That being said, COVID still raised some challenges and made the overall visa sponsorship process “longer and more difficult,” according to Robinson.
“We haven’t seen a higher demand for international doctors; However, we have seen a higher demand for researchers and computer specialists, ”Robinson wrote. “The COVID-19 pandemic has caused significant delays in sending international doctors to the United States and in starting labor. “
BCH had only one refusal each year in 2019 and 2020, although these cases were refused for other reasons of eligibility.
“I think the denials relate to cases where beneficiary H-1B has been approved for permanent residence in the United States,” Robinson wrote, “while the H-1B petition was pending, which led to the USCIS to decline the H-1B because the recipient was no longer eligible. “
Earlier this year, the Biden administration allowed the travel ban on Trump’s H-1B to expire, easing restrictions slightly.
However, Fitzgerald pointed out that several weeks ago, the Biden administration defended in court Trump’s use of an immigrant deportation order, a decision that affected many immigration lawyers. , did he declare.
“If you look at the Biden immigration platform… there is no mention of business immigration until [lower] on the list, ”Fitzgerald said.
With two more months in 2021, USCIS has yet to release data for this year. However, with the petition deadline in April and the lottery process going through the summer, Swapp said applications this year have increased by more than 50% from last year.
This means that obtaining an H-1B visa will only get more complicated as the competition intensifies.
Swapp sees a “global math problem” between the insufficient number of people to meet the demand of American companies, especially in STEM disciplines. US companies struggle to hire recent graduates because the majority of students in US STEM programs are foreign nationals.
“As a result, American companies are essentially forced to sponsor workers,” Swapp said, “because they are struggling to find that talent.”
Supply chain shortages have occupied America, accompanied by a huge shortage of workers with high and low skill levels. This includes the lack of foreign service workers at embassies abroad, who are currently experiencing long processing times as a result, Fitzgerald said.
“We have a similar situation where we are running out of workers, these companies are desperate, but it becomes a political issue,” Fitzgerald said, “because now they’re saying, ‘Wait a minute, are there a lot of workers Americans who can make it work? ‘”
The next big problem that will arise before next March, Fitzgerald said, is the wage ratio, or “going wage,” another lingering effect of the Trump administration. Under this rule, foreign employees must be paid 40% more than a U.S. worker doing the same job, Fitzgerald said.
“It’s nonsense,” Fitzgerald said.
The tension is then between the lack of American talent in various STEM disciplines, the limited number of H-1B visas available and the ever-increasing job applications from foreign nationals.
Neither Swapp nor Fitzgerald sees the 85,000 H-1B cap increasing anytime soon.
“We have a chance to own the next industrial revolution,” Swapp said. “If we don’t allow this talent to come into the United States to imagine new technologies with American companies, then those companies will go where that talent is.”