Jan. 02, 2018

The Silent Wall: The War on Legal Immigration

The Trump Administration has declared war on legal, employment-based immigration. Not since the Chinese Exclusion Acts of the 1800’s have we seen such restrictionist views on immigration policy, particularly in the area of employment-based immigration. Without a change in immigration regulations, the Trump Administration is quietly erecting a “silent wall” creating barriers and unattainable high standards in the adjudications process, which often exceed regulatory intent. The effects of the silent wall can be felt in processing at U.S. Citizenship and Immigration Services, the U.S. Department of Labor, and the U.S. Department of State as a result of the administration’s “Buy American, Hire American” executive order.  USCIS has issued record number “Requests for Evidence”…up by 44% for the months of January to August as compared to the same period last year.    

Most recently, DHS officials confirmed earlier this week that they are considering a proposal that could potentially prevent hundreds of thousands of H-1B workers from maintaining their H-1B status while their green card applications are pending. Current provisions under the American Competitiveness in the 21st Century Act permit H-1B holders to renew their H-1B visas beyond the statutory six-year limit if they have pending green card applications. This provides a substantial benefit to primarily Indian and Chinese H-1B holders given long waiting periods and growing backlogs for nationals of these countries to obtain green cards/immigrant visas based on high demand from those countries. Current policy, allows these backlogged foreign nationals in line for a green card to continue renewing their H-1B visas indefinitely until an immigrant visa number is available to them. “The idea is to create a sort of ‘self-deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans”, said a U.S. source briefed by Homeland Security Officials. This is only one of many proposals being considered to implement the Trump Administration’s “Buy American, Hire American” executive order. This latest proposal is in addition to prior proposals to further limit the H-1B program by increasing prevailing wage and education requirements, shutting out many U.S. employers from the H-1B visa program altogether.

Another significant blow to legal employment authorization in the U.S., is the dismantling of the program allowing the spouses of H-1B workers to seek employment authorization in the U.S.  Regulations are currently being drafted at DHS that reverse the May 26, 2015 rule, Employment Authorization for Certain H-4 Dependent Spouses.  This proposal has been added to the Administration’s Fall 2017 Regulatory agenda as “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.

2018 will undoubtedly be an uncertain year for employment-based immigration with several programs on the chopping block. Every new proposal creates fear and panic among not only foreign nationals legally working in the U.S., but also U.S. employers that depend on the H-1B program to recruit the best and the brightest to compete in a global economy. I always go back the same questions: why do employers hire H-1B workers? What is the incentive? One of the biggest and most dangerous misconceptions is that U.S. employers only hire foreign workers for “cheap labor”. This dangerous perception could not be further from the truth. If one takes that time to perform their due diligence and objectively research the H-1B program, it will quickly become apparent. There is no financial incentive to ever hire a foreign national over a qualified U.S. worker. It not only costs thousands of dollars more in attorney and government filing fees, but in most cases the required prevailing wage requirement is far higher than what an employer would normally pay a U.S. worker. Ask any employer why they rely on the H-1B program and they will answer in the same way. The goal in a competitive economy is simply to hire the “best and the brightest”, regardless of nationality. They cannot find qualified U.S. workers that have the skills necessary to fill highly skilled positions.  Until our education system catches up to other nations in the area of STEM, in particular, there will be a need to import highly skilled labor.  

Our current visa and green card programs provide a system of protections for U.S. workers before foreign labor may be imported, including in some cases, advertising requirements. Immigration is a volatile and polarizing debate. This is not about outsourcing jobs. These are highly-skilled and educated individuals legally in the U.S. that are filling a skills gap that many employers have struggled to fill for years. These individuals pay taxes, buy homes and contribute to the economy. The most complicating factor in this debate is the lack of information and the sensational distortion of the facts. The reality is that we are a nation of immigrants. Although imperfect, the H-1B program has been instrumental in both attracting the world’s leading researchers and scientists to our great nation adding to our global competitiveness.

If you have questions about employment-based immigration options or how these proposals may affect you and your employees, please feel free to contact an experienced immigration attorney at Whiteman Osterman & Hanna, LLP.