US business, immigration advocates oppose Executive Order on green cards, H-1B visas

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President Donald Trump passed an Executive Order that takes effect June 24, 2020, which extended and expanded the suspension of certain visas through the end of this year. The expansion is going to include a number of non-immigrants visas: the H-1B visa, H-4 visa, the H-2B visa, and J and L visas, several of which U.S. companies use extensively and have opposed administration efforts to curb.

The “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” notes that the pandemic has “significantly disrupted Americans’ livelihoods,” and millions of Americans remain out of work.  (Text of Proclamation available at – https://t.co/ve4w8gJt2H?amp=1)

In effect, visas for computer programmers who were hoping to come by the Oct. 31, 2020 lottery, are blocked, as are other skilled workers, affecting possibly tens of thousands of Indian applicants waiting to process papers for traveling to the U.S. before Dec. 31. Till that date, multinational American companies, and Indian companies operating in the U.S. are not going to be able to transfer their employees to the U.S. And, it puts a halt to spouses of  H-1B workers, those eligible for H-4 visas, to come over.

Back on April 22 this year, President Trump had put a 60-day pause on incoming green cards coming into the country who can take any job they like once they’re here.  That pause has been extended to December 31. The changes are a result of the President’s concern about rising unemployment figures of more than 40 million Americans, a senior administration official speaking in a call-in background briefing on the Proclamation said.

The H-1B is the high-tech visa where the highest percentage of applicants are of Indian origin.  The H-4 visa along with the Employment Authorization Document (EAD) which spouses of  H-1B also includes Indians as the largest cohort.

According to the Trump administration’s estimates, extending and expanding the scope of these visas would free up some 525,000 jobs this year alone. “Quite a significant number, where President Trump is focusing on getting Americans back to work as quickly as possible after we’ve suffered this hit to our economy based on the coronavirus and the harm it’s done,” the official said.

“Taken together, the green card pause, along with the pausing of the H-1Bs, the H-4s, the H-2Bs, Js, and Ls, it will open up about 525,000 jobs for Americans, which is, the President’s priority is getting Americans back to work,” the official said.

The U.S. Chamber of Commerce lashed out at the latest step, issuing a statement from CEO Thomas Donahue. ” Today’s proclamation is a severe and sweeping attempt to restrict legal immigration. Putting up a ‘not welcome’ sign for engineers, executives, IT experts, doctors, nurses and other workers won’t help our country, it will hold us back. Restrictive changes to our nation’s immigration system will push investment and economic activity abroad, slow growth, and reduce job creation,” Donahue said.

“We are fighting for more investment and more growth in America because that means more jobs, and today that fight takes on a new level of urgency. We have long advocated for a rational immigration system that meets the needs of our economy and reflects the values of our country. Today’s proclamation serves neither of those interests. The U.S. Chamber will continue to strongly advocate for an immigration system that serves the interests of all Americans,” Donahue added.

Brad Smith, president of Microsoft, tweeted, “Now is not the time to cut our nation off from the world’s talent or create uncertainty and anxiety. Immigrants play a vital role at our company and support our country’s critical infrastructure. They are contributing to this country at a time when we need them most.”

“Disappointed by today’s proclamation — we’ll continue to stand with immigrants and work to expand opportunity for all,” tweeted Sundar Pichai, CEO of Google Inc.

Amazon put out a statement criticizing the move. “Preventing high skilled professionals from entering the country and contributing to America’s economic recovery puts American’s global competitiveness at risk,” said a company spokesperson is quoted saying in a CNN Business report.

And Sean Perryman, director of social impact of The Internet Association whose members include virtually all the multinational IT companies, said, “IA condemns the administration’s latest executive order that will limit the number of high-skilled foreign workers from entering the country through the end of the year. The diverse and accomplished H-1B visa holders in the U.S. create American jobs and help our economy grow. All industries benefit from a visa system that allows U.S. companies to attract the best and brightest no matter where they’re from.”

Alice Wells, former State Department head of the Bureau of South and Central Asia, tweeted, “Being able to attract the best and the brightest through the H1-B visa program has made America more successful and resilient. Knowing how to tap foreign talent is a US strength, ot a weakness!#H1B #usindia”

“Massive restrictions to legal immigration – including restricting immigrants who contribute to medicine, science, and research in the United States, and who are working as we speak to develop treatments for coronavirus and other deadly diseases – will not only hinder efforts to save lives, but will prevent job creation and hurt our economy as our country struggles to recover,” said Todd Schulte, of Fwd.us, an advocacy organization supported by the tech industry.

“Bipartisan majorities in Congress have repeatedly rejected the President’s multiple attempts to cut legal immigration. This is a full-frontal attack on American innovation and our nation’s ability to benefit from attracting talent from around the world,” Schulte added.

The Wall Street Journal said the order would likely be challenged in court by business groups.

“I’d bet a large sum of money that none of these visa bans are ‘temporary.’ It’s abundantly clear that they will last as long as Trump is in office,” immigration attorney Doug Rand told News India Times. Rand worked on immigration policy in the Obama White House as Assistant Director for Entrepreneurship, and is now the co-founder of Boundless Immigration, a technology company that deals with green cards and citizenship.

Some experts note the Proclamation has little or no effect on those already inside the U.S. and undergoing any status changes. It effects those still outside but waiting to come in before December, particularly by the Oct. 31, 2020 lottery for H-1B visas. And they are already limited by the fact that visa offices around the globe have not been open to process any paperwork.
“If you look at visas issued in the last two months, they are effectively zero just a few hundred globally. And that’s going to continue for a few months more,” said Prakash Khatri, former Ombudsman at the U.S. Citizenship and Immigration Service.

“I’m deeply disappointed by President Trump’s misguided order to suspend these key work visa programs,” Congressman Raja Krishnamoorthi, D-Illinois, told News India Times in an email response. “I urge him to reverse this decision to help ensure our health care system and broader economy are ready to combat the next phase of this pandemic and to create the jobs we need for our economic recovery,” he added.

“The H-1B program in particular plays a crucial role in addressing our dangerous shortage of health care professionals while also providing other key sectors of our economy with talent from around the world to not only fill jobs, but create new ones,” Krishnamoorthi asserted, “Suspending this program will only weaken our economy and our health care workforce at a time when the need to strengthen both is as clear as ever.”
However, the extension of the pause on H-1Bs is “temporary action” the official made clear. “The more permanent actions that he is directing us to take include reforming the H-1B system to move in the direction of a more merit-based system,” one based on getting the “best and the brightest” immigrants, the official added.
Under the longer-term reforms, the administration wants the H-1B program to prioritize those workers who are offered the highest wages. The official noted that for the 85,000 H-1B visas, the U.S. sees some 225,000 applications last year for example. Up until this year, those visas have then been distributed by random lottery, a system that the President wants to get rid of and replace with ranking salaries, so that those 85,000 who get the highest salary offers out of the 225,000, would get the H-1B visa, a way to drive up wage and skill levels for H-1B applicants, the administration believes. That in turn would mean the 85,000 would not be competing with American citizens for those jobs, the official contended.

“Legislation would have to be introduced to bring that about,” notes Khatri, now an immigration lawyer in Washington, D.C.  “It is an aspirational goal of the President. He is saying to his constituents that he is wanting to shut down most of the immigration into this country,” Khatri said.

“A good portion of immigrants in the H-1B, EB 2 and EB 3 categories, have jobs which actually end up creating many, many more jobs for Americans. So by stopping them, we will be shipping a lot of these jobs overseas.”

But the administration believes this move will prevent those employers who may be low-balling immigrant tech workers’ salaries resulting in displacing American workers.

“Well, if the company hires a bunch of immigrants and then subcontracts them out to another company — say, Disney or AT&T, to just pick two historical examples — then they end up displacing American workers at Disney and AT&T, both of which infamously had their American citizen employees training their H-1B replacements as their last act,” the official cited an old example, an anti-immigration trope that plays out prior to most elections. Regulations to prevent this, the official said, are soon to come.

A lot of Americans are out of a job at this time, Khatri noted, “But the President and his advisors need to think strategically. This short term fix may have a negative effect long term.”

When companies can get much cheaper workers abroad the incentive to bring them here to do the job, will be gone, he says. “These are workers that cannot be replaced by American workers right now. So if we say no new technology workers can come into the country in next six month, all the companies are going to do is contract it to say India, instead of them being here and spending their money here,” Khatri said.

The Department of Labor has also been instructed by the President to change the prevailing wage calculation and “clean it up” the administration official said, with respect to H-1B wages, setting them at the upper end of earnings “– again, so we’re getting the best and the brightest, we’re adding the most value to the economy, and we’re maximizing the opportunity for Americans to get jobs.”

The Labor Secretary will also be authorized to conduct investigations into any H-1B abuses, the official said.

“That’s already in the law,” Khatri pointed out.

Other more permanent changes would include use of biometrics prior to entry, and checks to insure against COVID-19 entering the country.
The Executive Order is bound to affect American and Indian companies operating here, who hire technology workers, a large proportion of them from India.

The Trump administration official emphasized that the measures were temporary. “They are short term. The long-term measures will have much longer-term effect, but they’re not in the 525,000 job count,” the official clarified.

The senior official also contended that the pausing of green cards for the last 60 days had caused some 50,000 jobs to be freed up.

The Center for Immigration Studies, which is for restricting immigration, was pleased with the latest Proclamation. “It’s very good. Not everything we need (formal regulations are also needed because they’re harder to reverse) but it’s not just window-dressing. It even suspends au pairs, which I never thought I’d see,” tweeted Mark Krikorian, executive director of CIS.

Meanwhile, Immigration Voice, an advocacy organization for legal immigrants on high skill visas, and the bill S386 (Fairness bill) which lifts the country cap for green cards, said, it would continue to get that legislation passed even if the Trump Executive Order has been passed. “For many months, we all have heard the rumblings about these possible upcoming EOs and IFRs (Interim Final Regulations). We believe that such actions are unfair, unjust, and in violation of current laws,” Immigration Voice said on Facebook. It plans to file legal challenges against the orders.

The U.S. Chamber of Commerce spells out its “priority” in immigration reform to protecting Dreamers, Temporary Protected Status workers, and H-4 employment authorization for spouses, and raising the caps for employment-based visa programs to provide employers with the ability to meet their workforce needs, and encouraging oversight of administrative actions that hnder the ability of employers to hire or continue employing legal immigrant workers.