Guest Commentator: Jonathan A. Grode, U.S. Practice Director, Green and Spiegel LLC @GreenSpiegelUS

How will the business community benefit from an ease in federal immigration policies?

Consistent with its open hostility towards immigration of all forms, the Trump Administration has leveraged the COVID-19 pandemic to launch even more restrictive measures against individuals trying to come to the United States via legal means for employment-based purposes. Issued in the name of protecting national and economic security, though clearly a backdoor to pursue long-held policy objectives independent of the crisis they have failed to stem, the Administration’s Executive Orders over the past 10 months limiting travel and halting visa issuance have wrought havoc on the business community they purported to aid. Fortunately, and in addition to it projecting to more effectively tackle COVID-19, there is hope that the incoming Biden Administration will also implement a more consistent immigration policy that takes into account the severity of the pandemic without unnecessarily stifling international businesses that require a greater degree of global mobility for personnel to assume key assignments and launch new initiatives in the United States. And beyond COVID-19, the Biden Administration appears poised to roll-back other anti-immigration policies that have undermined the United States’ competitive edge for top foreign workers and capital.

The Trump Administration’s Business Immigration Legacy: Buy American Hire American

Before addressing the COVID-19-specific anti-immigration measures the Trump Administration has taken, it is worth stepping back to assess this Presidency’s impact on business immigration as a whole. Over the last four years, the Trump administration has undertaken more than 400 executive actions on immigration.[1] Measures targeting religious minorities, families – and specifically, children – fleeing persecution, Dreamers, and others, have rightfully sparked protest and outrage.

However, these Orders represent only one aspect of the Trump Administration attack on not only undocumented immigrants, but also on those pursuing immigration benefits legally. Namely, the Administration’s 2017 Buy American Hire American (BAHA) Executive Order.[2] BAHA, a protectionist program, imposes an increased level of scrutiny on H-1B visas, which many industries (especially tech) rely on heavily as a source of highly-skilled labor.[3] While the Trump administration’s aim was to encourage companies to hire U.S. citizens, the program also reduces the labor pool available to employers, some of whom fear talent will look to build careers elsewhere.[4] According to an analysis done by the National Foundation for American Policy (NFAP), the Administration’s Executive Actions have led to a reduction in legal immigration that will reach 49% by 2021, thereby compromising the nation’s labor force and economic growth – and of course, negatively affecting the individuals and their families who make up this labor force. [5] The NFAP analysis also found that the Trump administration’s approach to immigration could lead to a 59% lower average annual labor force growth should these policies continue.[6]

In this light, it is clear that the Trump Administration has seized on this crisis as an opportunity to further its anti-immigration and protectionist policies. These policies that have put children in cages, banned entry from Muslim-majority nations, and ignored our moral and legal obligations to vulnerable populations worldwide, have also produced numerous, appreciable, negative impacts on foreign national workers seeking to contribute to the U.S. economy while realizing their professional goals, as well as our local communities and businesses that benefit from their inputs. As discussed below, the COVID-19 pandemic has empowered the Trump Administration to not only perpetuate these policies, but in certain instances, attempt to impose even more drastic restrictions under the cover of this crisis. As has been the case throughout the Trump Administration, federal courts have served as a check on his Executive Orders; now, we look forward to the Biden Administration’s efforts to roll-back the Orders and internal policies that have caused so much damage over the past 4 years.

Suspension of Specific Visa Classifications and Routine Visa Services, and Country/Region-Specific Travel Restrictions

Taken together, the Trump Administration’s decision to cease issuing new visas of certain, highly useful classifications, the cancellation of routine visa services at U.S. Consulates worldwide, and the ongoing travel restrictions imposed on recent travelers from certain countries and/or regions, have created a massive hurdle for global mobility. Similar to other immigration-related Executive Orders, these proclamations were sudden, not always well thought-out, and inconsistently administered, all of which sow confusion and breed the kind of inconsistency and uncertainty that makes the lives of immigration attorneys and their clients much more difficult.

Issued in June 2020 and with near immediate effect, Presidential Proclamation 10052 halted the issuance of temporary workers in a range of visa classifications, including many in the “H” (professional workers) and “L” (intracompany transferees) categories, and extended the suspension of many classes of immigrant visas.  In spite of the well-recognized importance of these visa classifications to American businesses, the Trump Administration, citing COVID-19, ceased issuing new H and L Visas for temporary workers (in addition to immigrant visas for permanent residents) because it deemed that the admission of such individuals would “present a risk to the U.S. labor market during the economic recovery following the 2019 novel coronavirus outbreak.”[7] Even still, the Order’s wording was so unclear that the Trump Administration was forced to provide clarity very shortly after issuance. Of note, a U.S. Department of State Twitter handle was, for a time, the only source of valuable updates on official Department State policy pertaining to the Order’s implementation.

The suspension has been challenged by businesses and individuals who reject the administration’s “economic recovery” rationalization, and as of October 9, 2020, the U.S. Department of State has recognized that the named plaintiffs in National Association of Manufacturers et al. v. Department of Homeland Security  as well as their member organizations (e.g., members of the U.S. Chamber of Commerce) are no longer subject to this Proclamation following the Northern District of California’s October 1, 2020 injunction. In addition, a month after its implementation, a narrow set of exceptions to this ban was carved out, the National Interest Exceptions (NIE), covering: medical professionals, COVID-19 researchers, public health professionals, individuals resuming employment under the same position and visa (with the same employer), technical specialists, senior level managers, and other workers whose travel is deemed essential to the economic recovery of the United States.[8] Unfortunately, navigating the NIE landscape has proven to be challenging given the patch-work of rule implementation by a variety of Customs offices at airports, and at Embassies and Consulates worldwide. For other indivduals, they have no choice but to wait, even if they have been approved by U.S. Citizenship and Immigration Services, for the suspension to be lifted before they can even seek to apply for the visa that will let them travel to the United States.

And for those visa classifications that have not been suspended via executive fiat, it may be equally difficult to actually secure a new visa based on the worldwide cancellation of routine visa services. Emergency services have remained available in certain situations (though somewhat nebulous in their evaluation from Consulate to Consulate), as have mail-in applications in certain jurisdictions. Likewise, routine visa appointments have proceeded on a limited basis at certain Consulates, though these appointments remain subject to frequent cancellations. Meanwhile, other Consulates remain indefinitely closed. Predictably, many Consulates that are accepting appointments do not have anything available until mid-Spring 2021. Again, the variability of Consular openings, appointment availability, and the grounds by which one Consulate will grant an emergency appointment whereas another will not, make securing a visa an ever-moving target.

Even if an employee has or can obtain a visa, the Trump Administration’s travel restrictions on travelers who have recently been in certain countries provide an additional barrier to the international travel that facilitates international trade. Foreign workers have found ways around these restrictions after having been in the UK/Ireland, Schengen Area countries, Iran, China, and Brazil (e.g., a 2-week vacation in Mexico before entering the United States). However, these avenues are not equally available to all foreign nationals. As above, a foreign national may obtain an NIE which, if granted, will permit one entry to the United States within 30 days of receipt. Otherwise, foreign nationals and/or their employers face an open-ended period during which they cannot return to the United States.

Interim regulations from DOL and DHS

Though the most visible measures have impacted international travel (i.e., foreign nationals outside or seeking to depart the United States and return), the Trump Administration’s immigration-related response to COVID-19 has also negatively impacted foreign nationals currently present in the United States.

In particular, two interim final rules were published in October by Department of Homeland Security (DHS) and one by the Department of Labor (DOL). Interim final rules are published first as final rules, thus bypassing the standard notice and comment process and allowing for public comment only once the rule has been promulgated. As a result, these rules become effective on the date the rule specifies, denying the opportunity to be heard to those businesses and individuals immediately affected. The recent DHS rule narrowed the definition of “Specialty Occupation” (H-1B), so that employers must now show, for the offered position, that a Bachelor’s degree is required for all such positions in the relevant industry (previously only a demonstration that this was a “normal” or “usual” requirement was required).[9] The DOL rule, meanwhile, had the effect of raising the prevailing wage minimums for all levels of skill and experience with “immediate effect,” meaning that employers were forced to pay foreign national employees wages that were significantly above market rate if they are to access certain immigration benefits.[10]  Once again, the Administration’s justifications for the issuance of these rules on an emergency basis given the COVID-19 pandemic did not square with the reality that these proposals were in-line with previously-expressed, pre-COVID-19 policy objectives, and that they were announced more than 6 months after the crisis’ commencement, during a time when the Administration was also boasting about the impressive economic recovery. On December 1, a federal court struck down both rules on the basis that the agencies did not have sufficient reason to bypass the notice-and-comment rulemaking process required by the Administrative Procedures Act (APA).[11] Agency challenges to this ruling are expected;[12] but in the meantime, the U.S. Department of Labor has resumed using its pre-rule wages, and USCIS will not implement the new, heightened standards for specialty occupation workers.

Changes to H-1B Lottery System

On November 2, 2020, USCIS published a new proposed rule that, if implemented, will drastically alter the yearly lottery for new H-1B visas. This rule replaces the computer-based random lottery system with one that prioritizes applicants who have received offers with high salaries. This rule, once implemented, would greatly reduce the chances of entry-level professionals, often recent university graduates whose salaries approximate the lower prevailing wage levels, to receive visas.[13] As a result, employers may need to reassess their strategies when it comes to the positions and applicants they register for H-1B lotteries.[14] Like the DHS and DOL rules discussed previously, this rule has been challenged in federal courts, as many employers anticipate that this change to the lottery system may not only prevent them from hiring the foreign talent their organizations require,[15] but also because the rule may require congressional action.[16]

A Biden-Harris Administration’s Approach to Immigration: The First 100 Days

As it pertains to the U.S.’ response to COVID-19, and beyond, President-Elect Biden’s agenda includes many ambitious immigration policies. While many of his plans may require congressional authority, he has promised to exercise executive authority to undo many of the Trump Administration’s signature proclamations. In particular, President-Elect Biden has indicated he will issue multiple executive orders during his first 100 days in office to accomplish the following:

  • Reverse the suspension on issuance of immigrant visas and non-immigrant L-1 and H-1 visas;
  • Lift travel restrictions currently limiting entry from those recently present in the Schengen area, U.K., Ireland, Brazil, Iran, and China;
  • Review of the DHS and DOL rules impacting H-1B (discussed above);
  • Reverse the public charge rule;
  • Terminate border wall construction;
  • Reverse the “Muslim Ban,” and
  • Withdraw memoranda/policy guidelines that advise against respecting precedent in USCIS adjudications (which have led to increased scrutiny, and longer processing times, for visa renewal applications).[17]

The President-Elect has also vowed to send an immigration bill that provides a pathway to citizenship for undocumented immigrants to the Senate within the first 100 days of his administration.[18] The Biden-Harris campaign’s immigration plan includes modernizing the immigration system, implementing effective border screening, eliminating per-country quotas for highly-skilled immigrant visas, and tackling the root causes of migration.[19] Additionally, the Biden-Harris plan proposes the creation of new visa classifications such as a Startup Visa (an idea that has received bipartisan support for its job creation potential)[20] and the “Heartland Visa,” which would permit counties and cities to petition for additional immigrant visas as a way to support regional economic development.[21]

However, any legislative immigration reform that the Biden Administration might propose will require the support of the Senate. The Georgia runoff races for key Senate seats were crucial to the achievement of meaningful immigration reform. The moment the Democratic party obtains a majority in the Senate, which they did by winning both Georgia runoffs (accounting for Vice President-Elect Harris’ role as tie-breaker), President-Elect Biden’s chances of achieving legislative immigration reform have increased significantly.

With respect to the pandemic itself, Biden has a tough task. While the patchwork solution provided by the Trump administration largely driven by block travel from certain locations is highly problematic, to open the borders fully would be irresponsible from a public health perspective. It is hoped that the administration will move to a testing/quarantine-based model like Barbados, Ecuador, and Peru, amongst other countries. Doing so will protect the American people while creating an equally applied immigration policy.

Conclusion

In its purported efforts to protect public health since the start of the COVID-19 pandemic, the Trump Administration has implemented restrictive immigration policies which have unnecessarily harmed businesses that rely on a functioning immigration system. Luckily, the Biden Administration may be able to undo some of the damage by reversing certain executive actions limiting business immigration processing and entry while continuing to prioritize public health. In the short term, the reversal of certain key executive actions may allow businesses to resume a greater degree of more normal activity, without any major implications for the Covid-19 response. Down the road, the Biden Administration may be able to affect more comprehensive immigration law reform to promote the goals of both business and humanitarian interests, but this will only be possible with the support of Congress.  In addition, it will take time for policy changes to reach the individual officers who were hired or trained under the Trump administration and adjudications will be strict for the foreseeable future.  For now, there is reason to hope that the next few months, and the years that follow, will bring a more consistent and productive immigration policy for American businesses.

Member Perspectives give our members the opportunity to sound off on topic areas important to their business, our region, and other member companies. The opinions expressed in these blog posts are that of the authoring member.

The Chamber seeks out and initiates strategic opportunities to promote economic growth and prosperity for Greater Philadelphia.

[1] Pierce, Sarah & Jessica Bolter, Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes under the Trump Presidency 126 (2020), https://www.migrationpolicy.org/research/us-immigration-system-changes-trump-presidency.

[2] Reiff, Laura Foote, Business Immigration Law and Policy in 2021 – A look in the Crystal Ball, The National Law Review (Nov. 2020) https://www.natlawreview.com/article/business-immigration-law-and-policy-2021-look-crystal-ball.

[3] DiGregorio, Connor, Buy American, Hire American: How Renewed Protectionism Is Reshaping Supply Chains, IndustryWeek (Sep. 2013) https://www.industryweek.com/supply-chain/article/22024174/buy-american-hire-american-how-renewed-protectionism-is-reshaping-supply-chains.

[4] Id.

[5]Anderson, Stuart, Immigrants and America’s Comeback from the COVID-19 Crisis in NFAP Policy Brief, National Foundation for American Policy (Jul. 2020) https://nfap.com/wp-content/uploads/2020/07/Immigrants-and-Americas-Comeback-From-The-Covid-19-Crisis.NFAP-Policy-Brief.July-2020.pdf [hereinafter Immigrants and America’s Comeback].

[6]Id.

[7] Trump, Donald J., Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, The White House (Jun. 2020) https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/.

[8] Douglas, Genevieve, New Guidance Details Visa Ban’s National Interest Exceptions (1), Bloomberg Law (Aug. 2020) https://news.bloomberglaw.com/daily-labor-report/visa-ban-national-interest-exceptions-detailed-in-new-guidance.

[9] American Immigration Lawyers Association (AILA), Featured Issue: DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels, (Nov. 2020) https://www.aila.org/advo-media/issues/all/dhs-dol-rules-altering-h1b-prevailing-wage-levels.

[10] Id.

[11] U.S. Chamber of Commerce et al. v. DHS.

[12] Id.

[13] Hsieh, Chelsea, United States – DHS Proposes Changes to H-1B Lottery Selection Process, KPMG (Nov. 2020) https://home.kpmg/xx/en/home/insights/2020/11/flash-alert-2020-444.html

[14] Id.

[15] Id.

[16] Constangy Brooks Smith & Prophete LLP, The H-1B cap Lottery may change to favor the highest paid foreign nationals, Lexology (Nov. 2020) https://www.lexology.com/library/detail.aspx?g=5bb29a51-904f-4bcc-a260-539f71e8b336

[17] Pierce and Bolter, supra note 13; Reiff, supra note 14; Joe Biden filling top White House team with campaign veterans, The Economic Times (Nov. 2020) https://economictimes.indiatimes.com/news/international/world-news/changes-you-can-expect-in-immigration-with-joe-biden-as-president-of-the-united-states/articleshow/79165237.cms [hereinafter Joe Biden]; Connolly, Griffin, Biden’s first 100 days: What the next US president can and can’t do, Independent (Nov. 2020) https://www.independent.co.uk/news/world/americas/us-politics/biden-first-100-days-president-elect-mean-powers-b1720667.html.

[18] Murphy, Mike, Biden says immigration bill, overturning Trump’s executive orders will be priorities in first 100 days, MarketWatch (Nov. 2020) https://www.marketwatch.com/story/biden-says-immigration-bill-overturning-trumps-executive-orders-will-be-priorities-in-first-100-days-11606266987

[19] Pierce and Bolter, supra note 13.

[20] Anderson, Stuart, A Biden Immigration Policy: New Hope For Immigrants And Businesses, Forbes (Nov. 2020) https://www.forbes.com/sites/stuartanderson/2020/11/08/a-biden-immigration-policy-new-hope-for-immigrants-and-businesses/?sh=9b52e8378420.

[21] Pierce and Bolter, supra note 13.