US law firms are warning employers not to tell foreign workers how to answer newly added visa interview questions after the US State Department introduced stricter screening rules for temporary visa applicants.
The warning comes after a State Department cable issued on April 28 directed consular officers around the world to deny visas to applicants who say they fear returning to their home country.
Under the new rule, all nonimmigrant visa applicants must answer two questions during their interview. They will be asked whether they have faced harm or mistreatment in their home country and whether they are afraid to return there.
According to reports by The Guardian and an advisory issued by law firm Fisher Phillips LLP, answering “yes” to either question, or refusing to answer, could lead to a visa denial. The policy applies to several temporary visa categories, including H-1B and L-1 visas.
Law firms tell employers: Don’t coach workers
Speaking to the Guardian, Phillips warned companies against advising employees on how to respond during visa interviews. “[Don’t] advise employees on how to answer these questions. That is not your role,” the law firm said in its May 5 advisory.
“Employers who attempt to coach applicants on their consular responses could expose themselves to serious legal risk,” it added.
The concern is especially strong for H-1B workers, many of whom travel abroad for visa renewals or stamping appointments before returning to the United States. The H-1B visa allows American companies to hire skilled foreign professionals, especially in technology and other specialised industries, when they cannot find qualified US workers.
Now, immigration attorneys say even routine travel could become more stressful for workers coming from countries facing political instability, violence, or unrest.
The H-1B visa allows US companies to hire foreign professionals, mostly in white-collar jobs that usually require at least a bachelor’s degree.
Immigration attorneys, cited by the Dallas Express, warned that the new interview questions could also create problems later for people who eventually apply for asylum in the United States.
Under US law, people can seek asylum after entering the country, regardless of how they arrived. However, immigration lawyers warn that if a visa applicant states during an interview that they do not fear returning to their home country, but later applies for asylum citing persecution or safety concerns, immigration courts may raise questions about the credibility of their claim.
According to lawyers, visa denials themselves are also extremely difficult to challenge in federal court because of a long-standing legal principle known as “consular nonreviewability,” which gives consular officers broad authority in visa decisions.
Growing debate around the H-1B program
Critics have long argued that some companies misuse the H-1B system by favouring cheaper foreign labour over American workers. Economist George J. Borjas has previously argued that H-1B workers can sometimes earn less than similarly qualified American workers, which critics say may put downward pressure on wages in certain industries.
There have also been allegations involving manipulated job postings, wage issues, and shell companies tied to visa fraud investigations.
At the same time, supporters of the program argue that the US economy, especially the tech sector, depends on attracting skilled global talent.