Showing no sense of irony, the Trump administration is celebrating the expected launch of a SpaceX rocketship at the same time Trump officials plan to restrict H-1B visas, the same type of visa the founder of SpaceX, Elon Musk, used to begin working in the United States. The new regulatory actions against employers will come days after the White House issued an executive order on “regulatory relief” for businesses.
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An H-1B visa is typically the only practical way for a foreign national to work long-term in the United States. However, several sources have confirmed the Trump administration will soon implement new restrictions on H-1B visa holders and international students, intracompany transferees and likely even the spouses of high-skilled professionals.
An analysis of immigration law and regulations, as well as recent administration actions, leads to the conclusion a combination of methods will be used to implement the restrictions.
Blocking New H-1B and L-1 Visa Holders: The April 22, 2020, presidential proclamation suspended the “entry” of most immigrants. (H-1B visa holders are not immigrants; they have temporary status.) The word “entry” appears more than a dozen times in the proclamation. That is because attorneys note a president’s authority under Section 212(f) of the Immigration and Nationality Act can be used against the “entry” of people, as opposed to actions inside the country. “A proclamation issued under 212(f) may only restrict the entry of foreign nationals,” according to the law firm Berry Appleman & Leiden. “It may not be used to deny a petition to change or extend status, or to deny an application to adjust status.”
Given that limitation, a new presidential proclamation may suspend the entry of H-1B and L-1 visa holders, or achieve a similar result by imposing new conditions on their entry. Administration officials have discussed preventing the entry of H-1B visa holders who are not paid at the highest wage level – Level 4 – under the U.S. government’s prevailing wage criteria, even if the individual is applying for their first job. A National Foundation for American Policy analysis concluded such a requirement would become burdensome by creating exceptionally high minimum wages for H-1B visa holders: more than $254,000 a year for a financial manager in New York City, $144,165 annually for a biochemist in Chicago, including post-docs, and $172,640 for a software developer in Silicon Valley.
L-1 visa holders are multinational executives or managers, or employees with “specialized knowledge” transferred into the United States. The job protection arguments around L-1 visa holders are puzzling, since such individuals already work for the company. Preventing their entry will discourage businesses, particularly multinational companies, from investing more in the United States. Why invest in America if the U.S. government will not let you transfer your employees into the United States?
“Preventing businesses from transferring their highly talented workers into the U.S., even temporarily, will limit their ability to do critical scientific research, build new product lines, generate economic growth and create new jobs,” said Jon Baselice, executive director for immigration policy at the U.S. Chamber of Commerce, in an interview.
Using Regulatory Authority for H-1B, OPT, L-1 and H-4 Spouses: To impose new restrictions affecting international students, L-1 intracompany transferees and H-1B visa holders and their spouses the administration would need to use regulatory authority, which may include issuing regulations that have been on the agenda for months or years.
A rule on H-1B visas already on the Trump administration’s regulatory agenda would “revise the definition of specialty occupation . . . and revise the definition of employment and employer-employee relationship.” That regulation may now be issued. The topics in the potential regulation overlap with a recent settlement between U.S. Citizenship and Immigration Services (USCIS) and the business group ITServe Alliance that overturned 10 years of policies restricting employers and H-1B visa holders. (See here.)
The administration continues to target Optional Practical Training (OPT), which allows international students to work for 12 months, usually after graduation, and 24 additional months in science, technology, engineering and math (STEM) fields. A summary of a rule proposal on the agenda states: “ICE [Immigration and Custom Enforcement] will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.”
Any action against Optional Practical Training could be labeled “temporary” or a “suspension,” yet even that would make it more difficult for U.S. universities to convince international students they should study in America, particularly when countries such as Canada continue to be so welcoming. On May 14, 2020, the Canadian government announced significant flexibility for international students, including preserving the ability to work after graduation. (See here.)
An item on the regulatory agenda for L-1 visas would “propose to revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship and ensure employers pay appropriate wages to L-1 visa holders.” There is nothing in the immigration statute about a wage requirement for L-1 visa holders.
For years, the Trump administration has placed a proposed rule on the regulatory agenda to rescind an existing regulation that allows many spouses of H-1B visa holders to work – called H-4 EAD (employment authorization document). The administration could issue the rule.
In a recent government filing to oppose a group’s lawsuit against the current H-4 EAD regulation, the Trump administration made what appears to be a damaging admission: “Save Jobs’s claim of irreparable harm relies on the H-4 Rule eliminating or significantly reducing employment opportunities, meaning that the number of available information-technology jobs would significantly decline due to the H-4 Rule. But this relationship has not been shown to be ‘certain’ and ‘actual,’ rather than merely ‘theoretical.’” In other words, there is little evidence the spouses of H-1B visa holders harm U.S. tech professionals.
What type of regulations would the administration issue? William Stock of Klasko Immigration Law Partners thinks issuing a 212(f) proclamation that prevents the reentry of international students on Optional Practical Training who leave the U.S. would have an immediate but limited effect.
In an interview, Stock said it is more likely the Department of Homeland Security (DHS) would issue an interim final rule eliminating or significantly restricting OPT or STEM OPT. “An interim final rule can have an immediate effect, but can only be issued in limited circumstances and it’s not clear that a court would hold they exist here,” he said. “If that happens, schools and interest groups will go to court right away and say the rule change cannot be done as an interim final rule, and have a stronger case than if the agency had done notice-and-comment rulemaking.” He notes a court struck down an interim final rule from the Bush administration on STEM OPT, though it was given time to go through the notice-and-comment process and issue a new rule.
An interim final rule allows a rule to take effect almost immediately and would change only if an agency believes public comments justified it.
Another option, raised by Berry Appleman & Leiden (BAL), is the administration would issue “temporary final rules” in potentially multiple areas, including OPT, H-1B, L-1 and H-4 EAD. “[A]gencies are required under the Administrative Procedure Act (APA) to provide the public with adequate notice of a proposed rule followed by a meaningful opportunity to comment on the rule’s content,” according to a BAL policy update. “That process normally takes 12-18 months. However, an agency may issue a rule without prior notice and opportunity to comment when the agency for ‘good cause’ finds that those procedures are ‘impracticable, unnecessary, or contrary to the public interest.’ Put simply: the government may, under certain situations, issue a regulation that is effective immediately. In the past month, DHS has relied on that exception to the APA multiple times to issue Temporary Final Rules.”
“A Temporary Final Rule must of course be temporary, and statutes outside of immigration law limit temporary final regulations to three years,” according to BAL. “The recent H-2B and H-2A Temporary Final Rules are valid for three years and 120 days, respectively.”
William Stock provides a guidepost: “One way to tell whether the immigration hardliners win their battle with the pro-business advocates in the administration will be to see whether any changes to summer student employment, the F-1 OPT program and other temporary work visas are ‘temporary final rules’ or ‘interim final rules.’ Both types of rule changes skip the formalities and public involvement required for new regulations, but as the name implies, ‘temporary’ final rules have an expiration date while ‘interim’ final rules just change the rules without public comment. If DHS enacts substantial limitations to temporary work visa rules by ‘interim final rule,’ it will be a sign that the hardliners have won in getting the president to authorize long-term changes without public comment, using the pandemic as their excuse and opportunity.”
Analysts believe the administration may use justifications for new immigration restrictions that are contrived. Recent data from the Bureau of Labor Statistics indicate the unemployment rate in computer occupations declined between January and April 2020 – and it makes little sense to institute permanent (or semi-permanent) immigration changes in response to temporary economic problems caused by a health crisis. Analysts see little justification for the types of immigration changes being discussed, particularly since the president and top economic advisers have promised the economy will improve significantly by the fall or summer.
On May 27, 2020, a group of Republican senators, led by Senators Lindsey Graham and John Cornyn, wrote a letter recommending the president take a reasonable approach on temporary visas by putting aside the easy populist messages some have urged and focusing instead on the need for foreign-born workers who can aid the recovery, help businesses and complement U.S. workers. The senators correctly noted not all sectors of the economy have been equally affected by the fallout from pandemic lockdowns and social distancing.
Many in the business community fear that those in the administration who are “pro-growth” and supportive of immigration have numerous issues to worry about, while those most opposed to immigration, such as White House adviser Stephen Miller, spend nearly every waking hour focused on denying opportunity to as many foreign-born people as possible. They fear in a fight between the zealous and the moderate, the zealous will win, harming America and its future for years to come.