Trump's tough student and work visa policies are pushing legal immigrants to Canada

Key Points
  • The student visa process has become "a nightmare," says attorney Shah Peerally, whose work focuses on employment-based immigration for students and recent graduates.
  • That could be one reason international student applications and enrollment to U.S. institutions declined in 2018, for the second year in a row, a recent report finds.
  • Many students and skilled immigrants looking for a backup plan are heading to Canada, where it's much easier to stay and work, lawyers say.
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As President Donald Trump rails against illegal immigration, his administration has taken measures to restrict the ability of recently graduated and skilled foreign nationals to work legally in the U.S.

As a result, many students and skilled immigrants looking for a backup plan are heading to Canada, where it's much easier to stay and work, according to immigration lawyers.

The student visa process in the U.S. has become "a nightmare," said Shah Peerally, president and managing attorney of Shah Peerally Law Group in the San Francisco Bay Area, whose work focuses on employment-based immigration for students and recent graduates.

That could be one reason that international student applications and enrollment to U.S. institutions declined in 2018, for the second year in a row, a recent report has found.

"It's kind of across the board these days [for] clients to be asking if they would have better luck in Canada," said Sarah Pitney, an associate attorney at Benach Collopy, a practice in Washington, D.C., that takes immigration cases of all kinds. Pitney also said she gets a number of requests for referrals to Canadian immigration lawyers.

Peerally noted another reason why Canada is so attractive to these students. "Canada has an express entry. Within a few weeks they get not only their work permits, but also their residency," he added.

Many of the recent anti-immigrant policies in the United States are the direct result of Trump's "Buy American, Hire American" executive order, said Henry Chang, a Canadian immigration lawyer at Blaney McMurtry in Toronto.

"This is making it more difficult for students and foreign workers," he said.

He said recent roadblocks for immigrants are dovetailing with a longer-term problem: "The inability of their foreign workers to obtain an H-1B case number in the annual 'H-1B lottery.' Even applicants who receive H-1B numbers are more likely to receive requests for additional evidence or even denials when they file."

Declines in international students

For the second consecutive year, there have been declines in international student applications and enrollment, marking the only two years in which numbers of international students have gone down since 2003, according to the Chronicle of Higher Education. There was a 4 percent decline in the final application count for graduate students in fall 2018. This follows a 2 percent decline in 2017.

The overall decline is primarily driven by a 6 percent decrease in applications and 2 percent decrease in first-time enrollment in master's and certificate programs, according to a report conducted by the Council of Graduate Schools, which surveyed 240 institutions in 2017 and 2018.

"This is the first time we've seen declines across two consecutive years, and while we think it's too soon to consider this a trend, it is troubling," said CGS President Suzanne Ortega, in a press release.

"We continue to monitor issues, including changes in immigration and visa policy, with growing concern over the possible negative impact to the U.S.'s image as a welcoming destination for international students and scholars," she added.

The majority of foreign students come from China and India, yet there was a 12 percent decrease in the number of final applications sent by students from India. China's numbers remained relatively steady, according to the report.

Graduate student applications from the Middle East and North Africa fell by 14 percent in the fall 2017 and 2018 cycles. Graduate applications from Iran decreased by 27 percent over those two years, while decreasing by 28 percent for sub-Saharan African graduate students. First-time enrollment of Saudi students decreased by 21 percent.

New immigration services policy

Of the three different visas that international students can apply for when coming to the U.S., the F-1 visa is by far the most popular. One of the two visas that allow students to work while they study here, F-1 also provides holders the opportunity to work in the U.S. after their studies. Students holding degrees in a STEM field can extend this period for an additional 24 months.

A policy memorandum issued in July 2018, however, gave U.S. Citizenship and Immigration Services, or USCIS, adjudicators "full discretion to deny applications, petitions, or requests" without seeking additional information, striking down 2013 legislation that required USCIS to reach out to applicants for clarification.

Now, minor visa violations that might have even resulted from officials incorrectly filling out forms can end in the loss of immigration status, Peerally said.

Once an applicant loses their status, they must leave within 180 days or they will not be allowed back into the U.S. again for at least three years. The catch is that USCIS no longer has to inform people if they have committed a violation. So countless immigrants who have lost their status are unaware that they are no longer allowed to live or work in the U.S.

These foreign nationals often discover their loss of status when they are trying to apply for another visa status, possibly an H-1B for graduating students, or other immigration service.

"Before the memo, even when there was a violation, they didn't fall out of status; they were informed by USCIS and [their] unlawful presence would have started from the date they were informed [of this violation] by Homeland Security," said Peerally.

Many of these violations can be subjective, making it difficult to argue against or refute them. "Under Obama they were strict but the difference is we had a fair way to fight," Peerally said.

A USCIS representative said that the agency is "committed to rule-of-law and merit-based immigration reforms" that benefit American workers and U.S. society at large.

"USCIS will continue to adjudicate all petitions, applications, and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable laws and regulations," the representative said.

Delays in the H-1B visa program

H-1B visas are sponsored by an employer. In addition to limitations on how many foreign nationals a company can hire, there are caps on how many foreign workers from a particular country can stay in the U.S. Every year the U.S. government reviews a total of 85,000 H-1B employment visa cases. Of those, 20,000 are allocated only to workers holding a master's degree, while the remaining 65,000 are for those with either a bachelor's or a master's degree.

The 85,000 cap on visa applications doesn't guarantee that all of them will be accepted. USCIS can accept any number they choose.

"This is not a new policy; it has always been this way," Pitney said.

However, the issues around filling out visa forms are increasing, adding to the uncertainty that immigrants face in trying to land a job. Companies may be unlikely to wait weeks, months or even years for their prospective employee's immigration status to be resolved.

"Filing an H-1B is not that complicated, but pretty much every filing for H-1Bs have gotten requests for additional material," Pitney said.

"Sixty-eight percent of H-1B filings have been flagged for additional filings, sometimes for federal court," she said, citing the U.S. Department of Labor.

Amazon, Microsoft, Intel and Google were among the top 10 employers for approved H-1B petitions for initial employment in 2017, analysis of government data shows.

CEOs from a wide array of businesses, including Apple, J.P. Morgan Chase and Pepsi, in August addressed a letter to Department of Homeland Security Secretary Kirstjen Nielsen arguing that Trump's immigration policies are "causing considerable anxiety" for thousands of employees and posing "unnecessary costs and complications for American businesses."

They said the U.S. economy would suffer without skilled foreign workers: "The number of job vacancies are reaching historic highs due to labor shortages, [thus] now is not the time [to] restrict access to talent."

The Trump administration claims that its hard-line approach only extends to illegal immigration, but the new restrictions on legal immigration tell a different story. The administration's policies are turning away international students and recent graduates who have trained in the U.S., forcing them to take their knowledge to other countries.

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