Trump May Attempt To Force Long-Time H-1B Visa Holders Out Of U.S.

[tacobell fan]

Donald Trump’s June 22, 2020, 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.

A word of caution: There is no formal regulatory language for this plan. However, section 5 of the recent presidential proclamation, 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)).”

What is section 212(a)(5)(A)? That section of the Immigration and Nationality Act 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.

Labor certification, in a process mandated by the Department of Labor, is normally obtained by employers testing the labor market by placing paid advertisements and reviewing resumes. 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 (USCIS) 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. Congress recognized it was important America not lose talent and allowed professionals to work beyond 6 years in H-1B status by obtaining extensions if individuals had to wait for an employment-based green card. In the meantime, if the H-1B professional changes employers or jobs substantially (including with the same employer), then a new permanent labor certification and I-140 would be filed and the labor market tested again, notes Dagmar Butte of Parker Butte and Lane.

Due to the low annual limit of 140,000 for employment-based green cards, combined with a per-country limit on the number of green cards for nationals of one country, Indians can wait many years, even decades, before obtaining an immigrant visa in the employment-based second or third preferences.

Here’s where the plan suggested in the proclamation and by anti-immigration organizations comes in. 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.

The failure of Congress to pass legislation to end the per-country limit for employment-based immigrants has left Indian scientists and engineers, along with their spouses and children, vulnerable to a bureaucratic attack from Trump administration officials.

“This would have a devastating impact on people who have waited many years for their chance at the American Dream only to be denied by a changed process,” said Jonathan Wasden, a partner with Wasden Banias, in an interview. “This would cost individual companies and America an untold amount of talent.”

Attorneys advise caution given the need for more details on both timing and substance. Moreover, the administration could be dissuaded given the obstacles in its path to accomplish such a sweeping objective.

If the Department of Labor revokes and/or requires new labor certifications in a regulation, then Wasden believes the agency will run up against two issues in the existing statute. First, section 212(a)(5)(A) states that a labor certification should be done “at the time of application for a visa and admission.” Wasden said, “There is nothing in the statute that anticipates a continuing labor market test.”

Second, Wasden points out that in the American Competitiveness in the 21st Century Act, passed in 2000, Congress included specific provisions to protect workers who went through labor certification and needed to wait inside the United States (and continue working) until an immigrant visa became available. If an application for adjustment of status has been filed, employers can file extensions for H-1B visa holders to remain beyond 6 years “if 365 days or more have elapsed since – (1) the filing of a labor certification application on the alien’s behalf . . . or (2) the filing of the petition under such section 204(b).”

“There is clear statutory language and direction from Congress, which created provisions to allow workers to stay in the country while they wait for their green card,” said Wasden. “A proposed regulation as indicated in the proclamation would nullify the work of Congress, and I don’t think that will work out well for the government if they try and do that.”

There are other issues. “The Supreme Court recently pointed out in the DACA case that agencies must consider employers and employee’s reliance interests when making administrative changes in immigration policies,” said William Stock of Klasko Immigration Law Partners. “Any change that would invalidate current labor certifications after a certain length of time, for example, or would require a second labor certification from the same employer because of the passage of time, would be much more susceptible to legal challenge.”

Wasden is prepared to fight it in court, as would others, and believes he and his clients could prevail. However, he knows it is difficult to be certain of the outcome without seeing what a proposed rule from the Department of Labor and/or the Department of Homeland Security looks like.

Will the Trump administration’s plan to force hundreds of thousands of highly skilled Indian nationals out of America move forward? Will it succeed?

Anti-immigration officials in the Trump administration may hope the current recession and a new process will lead to an exodus of highly skilled Indians, Chinese and Filipinos. Analysts believe the impact on U.S. companies would be devastating, the journeys 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.

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