Quiet Crackdown on Legal Immigration in Higher Education
Marianel Saluria, an aspiring diplomat from Brazil, earned her Master Degree in International Affairs from a large public university in the Northeastern US. After graduation she began working for that university in her dream job; working with a professor, she ran international events on campus designed to promote diplomacy as a field of study. One year into the job, though, she ran into a roadblock: United States Citizenship and Immigration Services (USCIS) denied the petition, filed by her employer, that should have made it possible for her to continue working in the US.
Immigration law in the US decides a simple question: who gets to stay and who must leave? Under our Constitution Congress writes the law, so it is Congress who answers this question. And it did so through the Immigration and Nationality Act (INA) of 1965. Through that statute, Congress decided, in part, that the US wanted to attract students and educated workers; these are among the people who would get to stay. That statute accomplished this goal by establishing visa categories for students (F-1) and speciality workers (H-1B), or people who have been offered a job requiring at least a bachelor degree.
Given this legislative intent, it should be relatively easy for institutions of higher education to bring talented students to the US, to educate those students, and, if desired, to employ those students after graduation. Up until 2016, it was. Since then, though, it has become more and more difficult, even though there has been no change in the INA. The only thing that has changed is the occupant of the White House.
But can a US President change the law without Congressional action? No. And yes.
The Executive branch of our government includes all of the federal agencies. USCIS is the federal agency charged with deciding who will get F-1 or H-1B status. It is the President who chooses the heads of the federal agencies, including USCIS. A President with an anti-immigration agenda can choose a like-minded agency head to carry out that agenda. In the case of USCIS, such an agenda can easily be accomplished by denying cases.
This sounds illegal of course, and it is. But before it can be stopped, citizens and members of Congress have to know that it is happening. Because it happens slowly and quietly, one denial at a time, it can be difficult to spot.
The story of Marianel and her academic employer is just one example of the way that the Trump Administration, acting though USCIS, has been changing the law from one that encourages educating and employing talented foreigners, to one that does not.
Marianel discovered her love of diplomacy in a high school in Rio de Janeiro, Brazil when she was 17 years old. Her school hosted a Model UN, a simulation of the UN General Assembly where students perform an ambassador role while debating topics such as gender equality, climate action, and global health. Marianel played the role of the US Embassador. She researched, took positions, advocated and negotiated, enjoying all of it. She knew she wanted this to be her life’s work.
Because a diplomat would need to speak multiple languages, Marianel earned her bachelor degree in European languages from a college in Brazil. But she figured out quickly she would need more than a bachelor degree and the ability to speak a few languages to start a career in diplomacy; she would need a graduate degree in a related field. Given the lack of such educational opportunities in Brazil, Marianel researched programs abroad, setting her sights on the US, the home of the United Nations. Her research led her to a well-regarded International Affairs program at a public university in the Northeast.
Marianel was accepted into the master degree program in international relations. She entered the US in F-1 student status, determined to take advantage of everything the school had to offer. She took courses such as The Practice of Diplomacy, Peacemaking and Negotiations, and International Organizations; she was a star student, never earning less than an A.
Marianel’s favorite professor was Dr. Meg Lara, the Chair of the International Relations department. Dr. Lara is an expert on the United Nations, the very subject that had drawn Marianel to diplomacy. Marianel took every course that Dr. Lara taught. Dr. Lara noticed the young student and her innate understanding of the field.
When Marianel was in her last semester at the university, Dr. Lara was awarded grant funding from the UN. This was an honor for both Dr. Lara and the school. The grant was to be used for organizing and hosting events at the university that would shine light on the field of diplomacy. The idea was for the school to facilitate events such as visits by foreign delegations, roundtables with experts on diplomatic issues, and talks on cross cultural communications.
Dr. Lara, as a tenured professor with a packed schedule, would need help fulfilling the mandates of the grant. She needed to hire a full-time Project Manager who could manage an international event from beginning to end: from reaching out to speakers, to writing speeches made by university officials, to approving the contents of talks, to planning the logistics, to bidding farewell to the guests. The Project Manager would need an academic background in International Relations.
Dr. Lara offered the position to Marianel, knowing she would be perfect for it. To Marianel it was a fabulous opportunity, a way to start her career in diplomacy with Dr. Lara as a mentor. She accepted enthusiastically.
Immigration law gives F-1 students a one-year period after graduation during which they may work anywhere, so long as the job is related to the field of study. This period is referred to as Optional Practical Training (OPT). So Marianel was able to start working as a Project Manager in OPT status without requiring a new immigration status.
During her employment, Marianel’s performance was outstanding. Her crowning achievement was successfully hosting a delegation of Diplomats from Nagoya, Japan. The purpose of the event was to honor Townsend Harris, a prominent New York merchant who is credited with having forged US-Japan relations. The visit had to be carefully choreographed by Marianel to include relevant lectures, speeches, and viewings of archival materials. Marianel researched and prepared a draft speech to be made by the Dean. She also lined up lecturers from international organizations; this involved identifying appropriate players from the organizations and communicating with them intelligently about diplomacy and possible subjects for a lecture or event.
Wanting to continue to employ Marianel after her year of OPT, Dr. Lara decided to sponsor her for an H-1B visa. If granted H-1B status, Marianel would be permitted to continue working for the university for up to 6 years.
As a legal matter, the case should have been a “no-brainer.” The law requires that the job being offered is one that normally requires a minimum of a bachelor degree, and that the employee has such a degree. The degree must be in a field that is related to the job. The Project Manager position is one that would normally require at least a Bachelor Degree in International Relations. It is hard to imagine how an individual without an academic background in International Relations would be able to write speeches on diplomacy and interact with diplomats. The immigration counsel for the university filed the request (a petition) for H-1B status on behalf of Marianel, and was not concerned about the possibility of a denial.
But the employer received a Request for Further Evidence (RFE) from USCIS. Since the start of the Trump administration, the RFE rate has reportedly increased by 45%.[i] And the RFEs have been burdensome and duplicative, often asking for evidence already submitted. The one received in Marianel’s case fit within that pattern; it was fairly clear that USCIS had not carefully reviewed the petition.
The university worked hard to comply with every aspect of the RFE. It provided copies of advertisements for similar jobs at other academic institution that also required at least a Bachelor Degree in International Relations. It provided payroll records to show that the employer had other employees, with similar academic backgrounds, doing similar jobs. And it provided samples of work done by Marianel, including a speech that she prepared for the Dean of the Colin Powell School. The school submitted the RFE response; again, the immigration attorney was not worried because the evidence was strong.
Days later, the case was denied by USCIS. The decision included plenty of standard language, just copied and pasted over and over from other denials, about the legal requirements applicable to H-1B petitions. On the surface, it sounded almost plausible. But a careful reading made it clear that CIS had not applied the law to the evidence that was submitted. In fact, none of that evidence submitted was specifically addressed; the denial was handed down with complete and intentional disregard for the facts of the case.
To say that Dr. Lara and Marianel were devastated would be an understatement. While it is possible to appeal a denial, it takes more than a year for such an appeal to be decided. During that year, the employee cannot remain in the US. And most employers cannot leave a job open and wait for an appeal to be decided. For these reasons, the practical result of a denial is that the foreign employee must leave the US and the talent is lost. Marianel returned to Brazil, dejected.
This denial is indicative of an alarming trend. The denial rate on H-1B petitions has quadrupled since the start of the Trump administration,[ii] and petitions filed by institutions of higher education have not been spared. Had President Trump campaigned on a promise that he would gut legal immigration in institutions of higher education, all but the most right-wing elements in our society would have thought it was a terrible idea; yet that is exactly what is happening.
What will be the ramifications of allowing this situation to continue unchecked? At least two immediately come to mind:
1) The will of the people, voiced through Congress, will be undermined by the Executive branch. The INA represents a determination that one of the goals of the country’s immigration law is to attract students and educated workers.
2) Exceptional foreign-born talent will be turned away. Some of the country’s most prominent citizens are immigrants who helped to launch hugely successful businesses: Arianna Huffington (Huffington Post), Pierre Omidyar (eBay), Sergey Brin (Google), Elon Musk (Tesla), Jerry Yang (Yahoo), Hamdi Ulukaya (Chobani), and Jan Koum (WhatsApp). Most Americans would agree that sending any of these people home would have been the wrong decision for the US.
The administration’s official position on immigration is that its policies apply only to illegal immigrants. This position does not comport with the day-to-day reality faced by institutions of higher education trying to educate and employ foreign students and graduates. Instead, higher education is seeing an inexplicable crackdown carried out one denial at a time.
In order for this to be changed, it has to be brought to the attention of our elected officials. Chances are excellent that they will be shocked. Call your representative and urge him or her to hold the Trump administration accountable.
The name of the employees in the below essay have been changed to protect the employee’s confidentiality. If you enjoy this essay, please follow me on twitter: https://twitter.com/Immig_HigherEd
For the past several years, like other immigration lawyers, I have watched the actions of the current administration with great concern. Wanting to take some action, however small, I have decided to start a monthly newsletter. The goal will be to keep my readers up-to-date on current events in the world of immigration law and policy, to analyze some issues more deeply, and to provide historical context where it is relevant. This is my inaugural issue; you have been chosen to receive it because I believe that you will have an interest in the subject, and I’m testing the idea out. I hope you enjoy it.
Proposal To Raise H-1B Filing Fees In The Face Of Decline In USCIS Service
A November 14, 2019 Proposed Rule issued by USCIS maintained that the filing fee for I-129s, the form used for H-1B visas, should go up by approximately 50%. This proposal comes at a time when CIS processing times have slowed dramatically. Worse still, USCIS has created a “paper wall” by revising internal policies and then using those revisions to deny H-1Bs at unprecedented rates (see Mother Jones report). Many of the decisions have been appealed, resulting in the denials being overturned, also at an unprecedented rate. This is not surprising given that USCIS, by way of example, denied an H-1B filed for a Mechanical Engineer position where the foreign national had a degree in Mechanical Engineering; USCIS found that the employer had not established that a minimum of a BA degree was required for the job.
History Repeats Itself
An article in the Huffington Post, appearing on November 24, 2019, is a “must read” for anyone who feels that our country’s immigration policy has shifted dramatically notwithstanding the fact that no new legislation has been passed. The article reports on how a small group of anti-immigration hardliners has managed to drastically reduce even legal immigration. This was done without the approval of either political party. The article also chronicles the history of immigration in the US, shining a bright light on the fact that history does, in fact, repeat itself.