New Trump H-1B visa restrictions will harm businesses

On June 22, 2020, Donald Trump issued a new presidential proclamation that will suspend the entry of foreign citizens with temporary H-1B, L, H-2B and J visas until at least December 31, 2020. The proclamation, which continues prohibiting The entry of most new immigrants justifies the new restrictions with scant economic data and reasoning. International students working on the optional practical training were spared, at least for the time being. The proclamation recommends that federal agencies consider issuing new restrictive H-1B regulations, although the legality of such regulations is unclear.

The practical impact of the presidential proclamation: No one may obtain a new H-1B, L, H-2B, or J visa and enter the United States, with some exceptions, before December 31, 2020, and the proclamation may extend beyond that date. The exemptions include individuals “essential to the United States’ food supply chain” and “any alien whose entry would be in the national interest”, which could include those directly involved in providing care or conducting research on Covid-19. Exemptions, attorneys point out, can take weeks or months, even if approved, due to operational and other issues, such as when U.S. consulates will conduct interviews and issue visas. Prohibited J visa holders are those who “participate in an intern, intern, teacher, camp counselor, au pair, or summer work trip program.”

The proclamation says: “The suspension and limitation of entry. . . of this proclamation will apply only to any alien who: (i) is outside of the United States on the effective date of this proclamation; (ii) you do not have a nonimmigrant visa that is valid on the effective date of this proclamation; and (iii) you do not have an official travel document other than a visa. . . that is valid on the effective date of this proclamation or issued on any later date that allows you to travel to the United States and seek entry or admission. “

A person outside of the country whose registration was selected in March 2020 for a new H-1B visa will not be able to enter the United States and start working if they have never been to the United States or, for another reason, not have a visa or Recent valid travel document, note attorneys.

“The employers that will be most affected are those that filed H-1B limit cases and were looking to bring key personnel to the United States,” said William Stock of Klasko Immigration Partners in an interview. “In the short term, there will be little practical effect for those international students in the United States looking to change their status to H-1B, and for employers looking to hire H-1B employers outside of other companies. Current H-1B employees who have already issued an unexpired visa will be able to continue using it. The proclamation does not appear to apply today to H-1B employees in the United States who travel abroad and need a visa to return, but those H-1Bs should not travel without consulting an attorney, and should know that they are at risk of staying. trapped abroad for weeks or months. “

The probability of a successful legal challenge: Observers hope there will be legal challenges to the proclamation, and the limited financial justification provided in the presidential proclamation to suspend entry of H-1B and L-1 visa holders guarantees this.

The unemployment rate of people in computer occupations decreased from 3% in January 2020 (before the spread of the pandemic in the US) to 2.8% in April 2020, and fell again to 2, 5% in May 2020, according to an analysis by the Labor Office Current Population Statistics Survey of the National Foundation for American Policy (NFAP). The unemployment rate in computer occupations has been stable and, in fact, is declining. The vast majority of H-1B visa holders work in computer occupations.

It seems dubious to management observers to cite the overall national unemployment rate to justify blocking the entry of a multinational corporation executive or other employee already working for the company with an L visa, or to prevent the entry of people with H -1B visas in occupations with low unemployment rates. Jon Baselice of the United States Chamber of Commerce said preventing companies from transferring executives and workers to the country will discourage them from investing in the United States, hurting job creation.

Positive financial statements from administration officials also undermine the justification for the new restrictions. During Senate testimony on June 10, 2020, Treasury Secretary Steven T. Mnuchin said: “We continue to trust that the general economy will continue to improve dramatically in the third and fourth quarters.” These are the rooms covered in the proclamation. In statements made on June 5, 2020, Donald Trump said: “I think it will have a very good August, a very good July, but a spectacular one, perhaps a spectacular September, but a spectacular October, November and December.”

Commenting before the release of the proclamation, Jonathan Wasden, a partner at Wasden Banias, LLC, said: “Section 212 (f) [the authority used in presidential proclamations] it’s about emergency powers. If the outlook for the future of the economy is as positive and robust as indicated in the president’s comments, then there is no emergency on the horizon from which we must protect ourselves by using powers under 212 (f). “

The presidential proclamation mentions the number of American workers who lost their jobs in March and April, but not in May, in “key industries where employers currently require H-1B and L workers to fill positions.” A term like “key industries” can mean anything, as many types of employers hire highly-qualified foreign nationals, but economic data shows that in occupations that match H-1B visa holders, the rate of Unemployment has decreased since January 2020.

“The proclamation does not attempt a rational economic argument,” said Mark Regets, a labor economist and chief member of NFAP. “There is supposed to be a set number of jobs, which no economist believes, that any new job market participant should take someone else’s job, and he cites a number about lost jobs without noting that research shows hiring people in Highly qualified staff positions often support jobs for other workers in a company. ”

“A court may decide that relying on purely domestic and economic considerations as justification for the proclamation means that the proclamation will not obtain the deference that is normally given to the exercise of the president’s foreign affairs and national security powers,” said William Stock . “In fact, a court has ordered a prior ban that was justified with internal economic considerations, based on the Supreme Court’s observation that Section 212 (f) is not supposed to allow the president to ‘override particular INA provisions.’ From INA [Immigration and Nationality Act] already contains provisions limiting the economic impact of some categories of visas, but not others, this prohibition nullifies those provisions by removing entire sections of the INA that allow certain temporary visas under certain specific conditions. “

“The Supreme Court has ruled that courts must defer to the executive branch in this area,” Lynden Melmed, a partner at Berry Appleman & Leiden and a former chief USCIS attorney, said in an interview. “But the lower courts, particularly in 9^th Circuit, have shown little tolerance for gaps in logic. Even if the administration finally wins in the Supreme Court, a court order could take this issue beyond the elections. “

Potential H-1B regulations: A 212 (f) proclamation can prevent people from entering but does not directly affect foreign citizens within the United States. The proclamation sought to remedy that with language asking the Department of Labor (DOL) “to consider enacting regulations or taking other appropriate measures to ensure” that H-1B visa holders do not “harm” American workers.

“The Labor Department can move forward with actions that will increase H-1B salary obligations,” said Melmed. “Employers are already required to pay H-1B professionals the same amount as peer-to-peer American workers, so DOL is not solving a system glitch, but is looking to increase the costs of American companies that employ foreign workers. ” The new requirements or regulations could have problems in court, as immigration law specifies an employer’s H-1B salary requirements, and the administration is likely to encounter legal hurdles if it seeks to invent new salary rules that go beyond statute. .

It is also possible that the Labor Department is trying to change the rules on what critics call the “displacement” of American workers. That could also have legal problems. “Congress has not given the Department of Labor much room to change the standards regarding hiring situations,” said Melmed. “If the agency goes too far, a court is likely to remove the policy change for exceeding the agency’s authority.” Melmed also points out in the modern economy that American businesses are adapting to e-commerce and other new challenges. “Restricting the ability of American companies to contract with other companies that provide specialized services can harm the ability of American companies to adapt and compete, ultimately hurting American workers.”

The proclamation also asks the Department of Homeland Security to “consider enacting regulations or take other appropriate measures regarding the efficient allocation of [H-1B] visas. “This statement encourages the United States Citizenship and Immigration Services (USCIS) to change the H-1B lottery, which is used when the USCIS receives more registrations (under the new system) than allowed under the annual limit of 85,000.

Courts are likely to consider the administration’s preferred method of changing the lottery by adjudicating new H-1B petitions in the order of highest to lowest wages, attorneys say. “That would be a direct contradiction of legal language,” said William Stock. The statute establishes: “Foreigners who are subject to numerical limitations. . . visas will be issued (or nonimmigrant status will be granted) in the order in which applications for such visas or status are filed. “

Although the end date of the presidential proclamation is December 31, 2020, analysts suspect that if the courts do not block him and Donald Trump is reelected, then the proclamation could last much longer, perhaps even for years. “In the digital economy, you hire where the talent is,” said Aaron Levie, CEO of Box. “When he restricts immigration, jobs are still created, elsewhere. And later, when those people create the next Google, it won’t be here. “