I'm a business immigration lawyer. The current system is designed to get employers to say, 'Forget it.'
An immigration lawyer spoke to BI about how employers are faring as visa scrutiny increases.
Attorney Jason Finkelman says many deportation fears are unfounded, but he does advise caution.
Finkelman offers foreign workers and their employers tips on navigating the current environment.
This as-told-to essay is based on a transcribed conversation in mid-May with 44-year-old Jason Finkelman, a business immigration lawyer in Austin. The following has been edited for length and clarity.
These days, I feel like I'm half lawyer, half therapist for my clients.
I help foreign nationals with employment and family immigration. On the employment side, I'm working with clients across a range of industries, including tech, semiconductor, energy, oil and gas, research, and video gaming. Many of these are international entrepreneurs or investors looking to get a visa to start a business in the US.
There is an unfounded fear among so many people right now about being deported. I'm having calls with foreign workers, many of whom have highly advanced degrees and are being sponsored by Fortune 500 companies and top startups, including some of the biggest names in Silicon Valley, concerned about being deported for simply traveling abroad for work.
I'm even having calls with naturalized US citizens and people with green cards who have lived their lives for decades in this country without ever having committed a crime, or even received a parking ticket, but are seriously anxious about making routine international travel plans.
I have to keep reminding people that unless you have committed a major crime, it is extremely unlikely you'll be detained or removed from the US, no matter what status you are in, and no matter what you are hearing and seeing in the news.
I tell clients to "live your life." But it's not one or two people calling. It's dozens.
The Trump administration is picking up where it left off, making sure to be as strict as possible in adjudicating legal immigration to protect American jobs. It means stricter scrutiny of work visa applications and even routine travel.
When Joe Biden was president, we would get a Request for Evidence when there was something that was objectively missing from the visa application. The current administration is scrutinizing the subjective parts of an application to an extremely high degree.
H-1B visas are a classic example.
In my experience, the United States Citizenship and Immigration Services officer will question whether the job being offered to the foreign national really requires a bachelor's degree or whether the candidate's education really prepared them for the position.
I've gotten notices essentially saying a cybersecurity analyst role might not require a degree, or questioning whether a software engineer really needs a bachelor's. We respond with letters from industry experts and even information from government websites to show that these jobs indeed require degrees.
With the increased scrutiny, I also want to include in the visa petition proof that the applicant's sponsoring company really exists: an office floor plan and photographs of the signage and the people at their desks.
My clients look at me like, "You're kidding." I'm not, and I'm sorry.
This is kind of ridiculous, but it's going to take you 30 seconds to snap some pictures around the office and send them to me, as opposed to getting a Request for Evidence when the USCIS officer says, "No, this isn't a real company. Where is this person really going to work?"
So, we play this game. I believe it's designed to frustrate US employers into giving up. Employers need the most skilled worker, no matter who that person is. Sometimes, they happen to be a foreign worker. But there's so much effort and so many hoops to jump through that employers say, "Forget it, let's just hire an American worker."
The way I advise my clients lately in preparation for international travel, including work-related trips, is very different.
Six months ago, if a client had a valid work visa — say an H-1B, L-1, or O-1 — I'd say, "Maybe you get some verbal questions from the Customs and Border Protection officer, but OK. You can prove that you work. You're done."
I've started seeing border officers apply extreme scrutiny to foreign nationals reentering the country with work visas. They'll ask questions like, "Is there actually a job waiting for you? Is this a real company? Are you sure you're going to go back home after?"
In this environment where Customs and Border Protection officers are being stricter with foreign nationals traveling in, I'm advising all my clients to carry significant documentation with them to prove that they're currently employed and that they have this nonimmigrant intent to return to their home country.
They should carry with them not only their visa but also three recent paycheck stubs to show they're employed. I would also travel with a letter from their employer that says, "This person took a vacation or is traveling for business for a couple of weeks, and we expect them back in the office on this date."
Then, they need proof that they have a life back in the country they intend to return to, such as a property deed or lease, bank statements, or tax returns.
You want to be able to say to that border officer, "Look, I'm not playing any games. I'm employed, here's what I do. Here's my diploma." A mountain of evidence to get back in is prudent practice.
Not everybody crossing over is being scrutinized to this level, but we're seeing that happen more frequently, so better to be safe than sorry.
Any person entering the United States needs to be subject to a reasonable amount of scrutiny. I get that there are bad actors and fraud that goes on. But, it's getting to a point now where these roadblocks are making it significantly more difficult for foreign professionals to come into this country.
More importantly, it's making it harder for US employers to hire the best global talent they need, to innovate and grow their business, and to ultimately benefit our country as a whole.
Matthew J. Tragesser, a spokesperson for United States Citizenship and Immigration Services, told Business Insider in a statement:
"The Trump Administration remains committed to protecting national security and American workers. USCIS is enhancing screening and vetting to comply with President Trump's Executive Orders. These efforts will aid the prosecution of program violators and ensure American workers aren't overlooked or replaced in the process. This is what the American people voted for, and DHS is delivering on it."
A spokesperson for Customs and Border Protection told Business Insider in a statement:
"Under the leadership of the Trump Administration, we have seen a sharp decline in illegal immigration. This reduction has allowed our law enforcement personnel to get back to doing law enforcement work, like conducting thorough vetting and interviews. Lawful travelers have nothing to fear from these measures, which are designed to protect our nation's security. However, those intending to enter the US with fraudulent purposes or malicious intent are offered the following advice: Don't even try. If statutes or visa terms are violated, travelers may be subject to detention and removal. A visa is a privilege, not a right, and only those who respect our laws and follow the proper procedures will be welcomed."
Have an immigration story to tell? Contact the reporter via email at mrussell@businessinsider.com or Signal at @MeliaRussell.01. Use a personal email address and a nonwork device; here's our guide to sharing information securely.
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