Donald Trump’s June 22, 2020 presidential proclamation suggests a plan that, if implemented and implemented, could expel hundreds of thousands of long-standing H-1B visa holders from the United States. The plan, on the anti-immigration organizations’ wish list, is to force foreign citizens to wait years for employment-based green cards to go through the “labor certification” process again in the hope that many will not. succeed. The change in regulation or policy would aim to compel highly skilled Indian, Chinese, and Filipino citizens to leave the United States en masse, in effect deporting the United States to many of the world’s most talented people.
One caveat: There is no formal regulatory language for this plan. However, section 5 of the recent presidential proclamation says: “The Secretary of Labor, in consultation with the Secretary of Homeland Security, as soon as possible and in accordance with applicable law, will consider enacting regulations or take other appropriate measures to ensure that the presence in the United States of aliens who have been admitted or who have otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or H-1B nonimmigrant does not harm United State Workers in violation of section 212 (a) (5) (A) or (n) (1) of the INA (8 USC 1182 (a) (5) (A) or (n) (1)) “.
What is section 212 (a) (5) (A)? That section of the Immigration and Nationality Act deals with “labor certification.” When an employer sponsors a foreign citizen for an employment-based immigrant visa (a green card) in the second (EB-2) and third (EB-3) preferences, they generally must first obtain the person’s labor certification .
Labor certification, in a process mandated by the Department of Labor, is normally obtained by employers who test the labor market by placing paid advertisements and reviewing resumes. According to the law, labor certification “shows that there are not enough capable, willing, qualified (or equally qualified) workers in the case of a foreigner described in clause (ii) [teachers and people of exceptional ability in the sciences or the arts]) and available at the time of applying for a visa and admission to the United States and at the place where the foreigner must perform such qualified or unskilled work. “
After obtaining labor certification, within 180 days, an employer can file Form I-140 with the US Citizenship and Immigration Services. USA (USCIS) to apply to the immigrant worker. If a green card is not available (due to a delay), the H-1B visa holder may continue to work in the United States and wait for an immigrant visa. Congress recognized that it was important that the United States not lose talent and allowed professionals to work beyond 6 years in H-1B status by obtaining extensions if people had to wait for an employment-based green card. Meanwhile, if the H-1B professional changes substantially to employers or jobs (even with the same employer), then a new permanent labor certification would be filed and I-140 and the labor market would be retested, says Parker Butte’s Dagmar Butte. and Lane.
Due to the low annual limit of 140,000 for employment-based green cards, combined with a country limit on the number of green cards for nationals of a country, Indians can wait many years, even decades, before obtaining a visa of immigrant in the country. second or third job-based preferences.
This is where the plan suggested in the proclamation and by anti-immigration organizations comes into play. There are more than 350,000 Indian professionals (as of November 2019) with approved I-140 petitions (and another 357,000 dependents) waiting in the employment-based immigrant portfolio. , along with some 38,000 Chinese and 5,000 Filipino professionals. If the Trump administration changes the rules and forces all or most of these people to go through the labor certification process again, probably with new criteria aimed at eliminating these workers, many may not approve, particularly if the administration change the process.
The failure of Congress to pass legislation to end the country cap for employment-based immigrants has left Indian scientists and engineers, along with their spouses and children, vulnerable to bureaucratic attack by officials from the Trump administration.
“This would have a devastating impact on people who have waited many years for their opportunity in the American Dream only to be denied by a changed process,” Jonathan Wasden, a partner at Wasden Banias, said in an interview. “This would cost individual companies and the United States an incalculable amount of talent.”
Lawyers advise caution given the need for more detail about time and substance. Furthermore, the administration could be deterred given the obstacles on its way to achieving such a broad objective.
If the Department of Labor revokes and / or requires new labor certifications in a regulation, then Wasden believes the agency will face two problems in the existing statute. First, section 212 (a) (5) (A) states that a labor certification must be made “at the time of the visa application and admission.” Wasden said: “There is nothing in the statute that anticipates continued testing of the labor market.”
Second, Wasden notes that in the 21st Century American Competitiveness Act, passed in 2000, Congress included specific provisions to protect workers who went through labor certification and had to wait within the United States (and continue working) until it became an available immigrant visa. If an application for adjustment of status has been filed, employers can file extensions for H-1B visa holders to stay more than 6 years “if 365 days or more have passed since – (1) the filing of a certification application labor on behalf of the foreigner … or (2) the filing of the petition under said section 204 (b) “.
“There is clear language and statutory direction from Congress, which created provisions to allow workers to remain in the country while waiting for their green card,” Wasden said. “A proposed regulation as outlined in the proclamation would nullify the work of Congress, and I don’t think it will work well for the government if they try.”
There are other problems. “The Supreme Court recently noted in the DACA case that agencies must consider the trusted interests of employers and employees when making administrative changes to immigration policies,” said William Stock of Klasko Immigration Law Partners. “Any change that would invalidate current labor certifications after a certain period of time, for example, or require a second labor certification from the same employer due to the passage of time, would be much more susceptible to legal challenge.”
Wasden is prepared to fight in court, as others would, and believes that he and his clients could prevail. However, he knows that it is difficult to be sure of the result without seeing what a rule proposed by the Department of Labor and / or the Department of Homeland Security looks like.
Will the Trump administration’s plan to force hundreds of thousands of highly qualified Indian citizens to leave America move forward? He will be successful?
Anti-immigration officials in the Trump administration can expect the current recession and new process to lead to an exodus of highly-skilled Indians, Chinese and Filipinos. Analysts believe the impact on American companies would be devastating, travel to Canada, India, and elsewhere would be swift, and America’s reputation as a hub of innovation for the world’s most talented would be extinguished. A foreign power that hopes to paralyze the human and industrial capacity of our nation could not devise a better plan.