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Vetting Visas: Declines in U.S. Temporary and Permanent Work Visa Issuance to Chinese and Indian Nationals

In 2017, the U.S. Department of State is on track to issue fewer work visas to Indian and Chinese nationals. With public data available from March 1 to August 31, 2017, it does not appear that Department of State will match 2016 visa issuance numbers[i] with respect to Chinese H-1B visa applicants, Indian H-1B and L-1[ii] visa applicants, or first preference (EB-1) employment-based immigrant visas (green cards for exceptional ability, outstanding research or teaching, or multinational managers and executives):

Time Period

China H-1B

China - EB-1 (E11, E12, E13, and dependents)

India H-1B

India - L-1

India - EB-1 (E11, E12, E13, and dependents)

Mar-Aug 2017 Subtotal

7,023

225

45,820

10,483

24

FY 2016

21,657

685

126,692

23,511

139

FY 2015

18,306

393

119,952

23,689

169

In other words, given the pace of visa issuance over the six months reported, it appears that visa issuance has slowed in these major business visa categories.  Specifically, Chinese H-1B and EB-1 immigrant visas are both on track to be down over 30% based on the March to August 2017 data. Indian EB-1 visas are on track to be down over 70%, Indian H-1B visas are on track to be down over 25%, and Indian L-1 visas are on track to be down over 10%.

Interestingly, this visa issuance slowdown does not appear to have impacted student visas, second or third preference employment-based immigrant visas (where the sponsoring employer must generally show that there is no available U.S. worker for the position), and fifth preference employment-based immigrant visas (green cards for EB-5 investors):

Time Period

China - F1

China - EB-2/EB-3 (E2, E3, and dependents)

China - EB-5 (C5, I5, R5, T5, and dependents)

India - F1

India - EB-2/EB-3 (E2, E3, and dependents)

India - EB-5 (C5, I5, R5, T5, and dependents)

Mar-Aug 2017 Subtotal

91,832

208

3,901

34,707

130

59

FY 2016

148,016

371

6,968

62,537

228

90

FY 2015

274,460

541

7,616

74,831

246

71

As such, the decrease appears limited to employer-sponsored categories where the employer is not required to demonstrate that it was unable to find a qualified U.S. worker.  In particular, in terms of raw numbers, the impact is greatest on H-1B visa issuance.

Without access to country-specific data concerning visa refusals or administrative processing, it is difficult to pinpoint the exact cause of this decrease.  While certainly demand could have dramatically decreased, this is unlikely given that the H-1B category has been immediately oversubscribed for the last five years. More likely, the State Department is either issuing more visa refusals or subjecting more applicants to administrative processing. 

Looking specifically at administrative processing, when consular officers determine that they need additional information, documents, or background checks in order to determine the applicant’s visa eligibility, officers will issue a 221(g) notice indicating that the applicant’s visa application has been placed in administrative processing.  While in administrative processing, the Department of State will conduct further security checks, and may request additional information or documents from either the visa applicant or the sponsoring employer.  While the Department of State indicates that most administrative processing is resolved within 60 days, in many instances it can take much longer.

An increase in administrative processing for employer-sponsored categories that do not require proof of unavailable U.S. workers would be consistent with stated White House policies to develop “extreme vetting” and create policies consistent with the “Buy American, Hire American” executive order.  These policies were designed to increase scrutiny on foreign nationals seeking visas, and discourage the use of foreign workers in the United States.  Slowing the process through administrative processing would accomplish both of these goals.

While the data above does not conclusively show that employer-sponsored work visa applicants will more likely be subject to administrative processing, it does suggest that possibility in light of recent executive orders. Given this, work visa applicants should at minimum prepare themselves for greater scrutiny and delays at the consulate.


[i] https://travel.state.gov/content/visas/en/law-and-policy/statistics.html

[ii] The Chinese use of the L-1 has historically been low, particularly in comparison to India’s usage.  Over 2017, the Chinese L-1 visa issuance has remained consistent with previous years.

© Copyright 2013 - 2020 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VII, Number 313
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About this Author

David J. Wilks, Miller Mayer, Immigration Litigation Lawyer, employment-based visas attorney
Associate

David J. Wilks is an Associate in Miller Mayer’s Immigration practice group.

Mr. Wilks’ practice focuses primarily on employment-based immigration. He has represented a wide range of clients, including universities, multinational corporations, health care institutions, small businesses and entrepreneurs in seeking immigrant and nonimmigrant status for individuals in diverse fields and specialties. Mr. Wilks has also provided immigration expertise relating to large corporate acquisitions, as well as assisted clients with I-9 compliance and family...

607-273-4200
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