Will Trump Administration force H-1B visa holders to go through labor certification process again?

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NEW YORK – The Trump administration’s move to suspend most new work visas and issuing of Green Cards overseas, through the end of the year, has been under the scanner, since the executive order was issued last week. While polls suggest Americans certainly won’t mind the move by the President, given the dire domestic unemployment situation, what’s looming large now is uncertainty for long-term H-1B visa holders in the US. Some fear more draconian measures are being planned, to try throw them out of the country.

Stuart Anderson, the executive director of the National Foundation for American Policy, a non-partisan public policy research organization, writing in Forbes, this week, pointed out that Trump’s June 22 presidential proclamation suggests a plan that, if pursued and implemented, could drive hundreds of thousands of long-time H-1B visa holders out of the United States.

‘The plan, on the wish list of anti-immigration organizations, is to force foreign nationals waiting years for employment-based green cards to go through the “labor certification” process again in the hopes many will not succeed. The regulation or policy change would aim to force highly skilled Indian, Chinese and Filipino nationals to leave the United States en masse – in effect, deportation from America of many of the world’s most talented people,’ he wrote.

Anderson based his argument on section 5 of the recent presidential proclamation, which states: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1)).”

Section 212(a)(5)(A) of the Immigration and Nationality Act, that Anderson refers to, is about “labor certification.” When an employer sponsors a foreign national for an employment-based immigrant visa (a green card) in the second (EB-2) and third (EB-3) preferences, it generally must first obtain labor certification for the individual.

Under the law, labor certification “shows there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii) [teachers and people of exceptional ability in the sciences or the arts]) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor.”

After obtaining labor certification, within 180 days, an employer can file Form I-140 with U.S. Citizenship and Immigration Services to petition for the immigrant worker. If no green card is available (because of a backlog), it is possible for an H-1B visa holder to keep working in the United States and wait for an immigrant visa, Anderson wrote.

“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 backlog, along with about 38,000 Chinese and 5,000 Filipino professionals. If the Trump administration changes the rules and forces all or most of these individuals to go through the labor certification process again, likely with new criteria aimed at eliminating these workers, it is possible many would not pass, particularly if the administration changes the process’, Anderson noted.

The consequences would be devastating not just for hundreds of thousands of families dependent on the H-1B visa, and waiting for a Green Card, but analysts believe the impact on US companies would be devastating. The migration of skilled workers to Canada, India and elsewhere would be swift and America’s reputation as a center of innovation for the world’s most talented would be extinguished.

‘A foreign power hoping to cripple our nation’s human and industrial capacity could not devise a better plan,” Anderson surmised of the possible move by the Trump administration.

Even as the visa community in the US is roiled by all the new developments – with the miserable knowledge that traveling overseas would mean taking a huge risk of being barred from returning, and H-4 visa workers fear their work permit would be axed soon, what’s now apparent is the immense misery for some 1,000 odd visa workers stuck in India because of Trump’s new executive order.

The Washington Post and Reuters this week highlighted the plight of some of those H-1B visa workers and their dependents stuck in India, separated from their family, through the end of the year, at least, because of the proclamation.

The stories of ‘collateral damage’ include that of software engineer Poorva Dixit, an H-1B visa holder, now stuck in Mumbai, separated from her husband and two children, 6 and 3, in California.

Dixit, who has lived in the US for 14 years, had to rush to India in March after her mother had an accident and later died. Meanwhile, the US embassy closed down due to the pandemic, before her appointment to renew her visa.

“I’ve already lost my mother and I am being kept away from my motherhood as well,” Dixit was quoted saying by Reuters.

Another H-1B worker in limbo is Pramod Alagandhula, an engineer working at a biotechnology company in Michigan. He and his wife returned to India in February to care for a sick parent. He has been working remotely from India since March, but the embassy closure meant his visa renewal application was not processed. He worries that he will lose his job if he is unable to go back soon.

Vinod Albuquerque, a 41-year-old business consultant, who has continued working remotely for his company in Atlanta since he had to make an emergency trip to Mangalore, when his father had a stroke in February, is yet another caught off-guard by Trump’s move.

He left his pregnant wife, due in September, and 6-year-old son in the United States. He, too, was not able to get to a visa appointment before the consulate shuttered and is now stranded.

“I still contribute to the economy, I am still being taxed in the U.S.,” he was quoted as saying.

For skilled workers on a visa in the US, the words written by Dixit’s 6-year-old daughter, and stuck on a family portrait on the fridge, might resonate broadly: “living sadly ever after.”

(Sujeet Rajan is Executive Editor, Parikh Worldwide Media. Email him: sujeet@newsindiatimes.com Follow him on Twitter @SujeetRajan1)