Law firms are warning employers not to coach foreign workers on how to answer new visa interview questions after the State Department directed consular officers worldwide to deny visas to applicants who say they fear returning to their home countries.
A new State Department cable issued April 28 requires all nonimmigrant visa applicants to answer “no” to two questions: whether they have experienced harm or mistreatment in their home country and whether they fear returning there. According to the directive, an affirmative answer — or refusal to answer — can lead to a visa denial, according to reporting by The Guardian and a client advisory from the law firm Fisher Phillips LLP.
The H-1B visa is a temporary U.S. work visa that allows employers to hire foreign workers, typically in white-collar occupations requiring at least a bachelor’s degree.
The policy applies broadly to temporary visa categories, including H-1B and L-1 workers, according to Fisher Phillips. The firm warned employers that attempting to coach employees on how to answer could expose companies to “serious legal risk.”
“[Don’t] advise employees on how to answer these questions. That is not your role,” the law firm wrote in its May 5 advisory. “Employers who attempt to coach applicants on their consular responses could expose themselves to serious legal risk.”
The guidance comes as scrutiny surrounding the H-1B program intensifies nationally and in Texas.
A recent report by The Dallas Express highlighted allegations by the Justice Department that software company Cloudera used a recruitment process that allegedly blocked American applicants from jobs tied to the PERM green card sponsorship process while favoring foreign visa workers. Cloudera denied wrongdoing, and the allegations must be proven in court.
Another DX report published May 7 detailed a letter from Texas Republican lawmakers, including Rep. Beth Van Duyne, urging Vice President JD Vance and federal agencies to investigate alleged H-1B abuse in North Texas. The lawmakers alleged potential fraud involving shell companies, wage manipulation, and misleading job postings.
Critics of the H-1B system, including economist George J. Borjas, have argued that the program can depress wages for American workers. “On average, H-1B workers earn 16 percent less than comparable natives,” Borjas previously wrote in a paper cited by The Dallas Express.
Supporters of the visa program, including former presidential candidate Vivek Ramaswamy, have argued the United States needs access to global talent to remain competitive. Ramaswamy wrote on X in 2024 that “ ‘Normalcy’ doesn’t cut it in a hyper-competitive global market for technical talent.”
The new State Department directive has also raised concerns among immigration attorneys because asylum claims and visa interviews can later intersect.
Under U.S. law, people physically present in the country may apply for asylum regardless of how they entered. Fisher Phillips warned that an applicant who denies fearing persecution during a visa interview and later seeks asylum could face credibility questions in immigration proceedings.
The policy also arrives amid longstanding legal limits on challenging visa denials. In a July 2024 analysis of the Supreme Court’s decision in U.S. Department of State v. Muñoz (2024), the blog of law firm Jackson Lewis wrote that federal courts generally lack authority to review consular visa denials under the doctrine of “consular nonreviewability.”
“The doctrine of consular nonreviewability holds that because the INA fails to authorize judicial review of consular decisions denying visas, federal courts do not have the authority to review visa denials,” Associate Attorney Carolina Guiral Cuervo wrote for the blog.
No publicly available federal dataset currently tracks how many H-1B visa holders later apply for asylum. However, some overlap exists between countries with large H-1B populations and countries whose nationals receive significant numbers of asylum grants.
| Top Ten Countries of Birth of Approved H-1B Beneficiaries, FY 2024 | Total | Total Individuals Granted Asylum FY 2021-2023 | Total |
|---|---|---|---|
| #1 India | 283,397 | #1 Afghanistan | 14,470 |
| #2 China | 46,680 | #2 China | 4,870 |
| #3 Philippines | 5,248 | #3 Venezuela | 3,760 |
| #4 Canada | 4,222 | #4 El Salvador | 2,990 |
| #5 South Korea | 3,983 | #5 India | 2,710 |
| #6 Mexico | 3,333 | #6 Guatemala | 2,580 |
| #7 Taiwan | 3,099 | #7 Honduras | 2,120 |
| #8 Pakistan | 3,052 | #8 Russia | 2,070 |
| #9 Brazil | 2,638 | #9 Turkey | 1,490 |
| #10 Nigeria | 2,273 | #10 Colombia | 1,140 |
The H-1B figures reflect the number of beneficiaries approved in the United States as of 2024, according to USCIS data. The asylum figures reflect grants issued during fiscal year 2021-2023, according to Department of Homeland Security data.
The State Department defended the new screening measures, telling The Guardian that consular officers “are the first line of defense for US national security.”
Meanwhile, immigration attorneys say companies relying on foreign labor may now face heightened uncertainty when employees travel abroad for visa renewals, particularly workers from countries experiencing political unrest or violence.
