Many were alarmed but not surprised when President Trump issued the proclamation on June 22, 2020, extending and expanding the earlier 60-day visa ban that temporarily stopped the issuance of most categories of green cards for persons outside the U.S. Unless federal courts overturn this Trump proclamation, the expanded visa ban will remain until the end of the year.
While COVID-19 is the ostensible excuse for the recent visa ban, the proclamation is actually more in line with a series of policies that align with President Trump’s Buy American Hire American (BAHA) Executive Order issued months after he took office.
Hardest hit by BAHA are U.S. establishments that need the services of H-1B visa workers – temporary foreign professional workers who serve as engineers, computer analysts, software developers, business analysts, accountants, physicians, teachers or graphic artists.
Often, policies designed to restrict the admission of H-1B visa workers are justified by Trump as measures intended to protect U.S. workers from foreigners who purportedly compete for their jobs. It is based on the misimpression that the H-1B visa program provides unfettered entry of foreign professionals into the U.S. labor market.
H-1B Visa Program Has U.S. Worker Protections
Even before Trump’s BAHA, mechanisms were already in place within the H-1B visa program to protect U.S. workers. These mechanisms include an annual cap on the number of H-1B visas issued per year, employer attestations to comply with prevailing wage requirements, and the government fees for the filing of H-1B petitions.
H-1B visas are subject to an annual quota that has actually fallen far below the needs of U.S. businesses. The current annual limit is 65,000 visas, with 20,000 additional visas for foreign professionals who graduate with a U.S. master’s degree or doctorate, or a total of 85,000 visas. For the upcoming fiscal year, the demand for H-1B visas was over three times higher than the H-1B quota. In previous years, the U.S. Citizenship and Immigration Service had to resort to a lottery whereby H-1B petitions it received during the first five days of the filing season will be randomly selected for processing.
H-1B employers must obtain a certification of its Labor Condition Application (LCA), a pre-filing requirement whereby they promise to comply with H-1B visa rules and to pay at least the prevailing wage that corresponds to a specific occupation in a geographic area. The LCA is intended to safeguard the wages and working conditions of U.S. workers.
Over the years, government fees for filing an H-1B petition have increased considerably. Depending on the number of employees with H-1B or L-1 status, it could cost a U.S. employer between $1,710 to $6,460 in government fees to file an initial or change of employer H-1B case.
Trump’s Extreme Vetting of H-1B
Under the Trump government, the screws on the H-1B visa program have tightened further through the practice of extreme vetting.
Shortly after BAHA was announced, more Requests for Evidence were issued by USCIS even as denial rates also went up. USCIS closely scrutinized prevailing wage levels and immigration records of F-1 students seeking change of status to H-1B. It conducted more site visits and employer audits. It also required more documentation of third-party placements of H-1B workers.
USCIS even rescinded the long-standing policy of giving deference to prior H-1B approvals when adjudicating H-1B extension cases. As a result, H-1B extension cases required more documentation and has taken longer to adjudicate.
Visa Ban Impact on H-1B
As the dust settles, the public is beginning to see that the impact of the visa ban proclamation is more political than practical. While the visa ban does add to the false narrative that foreign workers take jobs away from Americans, it has less of an impact on many would-be and existing H-1B workers as initially expected.
For one, regular visa processing (including those for H-1Bs) at U.S. embassies and consulates had been suspended since March 20 due to the Covid-19 pandemic. This effectively dilutes the effect of the visa ban because there are no interviews being scheduled or visas being issued anyway.
Second, most H-1B visa petitions are filed with an application for change of status because the would-be foreign worker (who may be currently on F-1 student status) is already in the U.S. The visa ban affects those who will need to apply for an H-1B visa in order to enter the U.S. as an H-1B worker.
Third, most H-1B petitions will take effect on October 1, 2020, when the USCIS fiscal year begins. Unless the visa ban is extended beyond December 31, 2020 or overturned sooner by a federal court, the visa ban will only set back the foreign worker by about three months. In other words, the foreign worker can theoretically apply for an H-1B visa after the visa ban expires at the end of the year.
Fourth, because the visa ban does not affect those who already have visas, it is possible for a foreign worker to enter the U.S. on that other visa (e.g., B-2 tourist visa) and file for a change of status to H-1B at the end of the legal period that avoids a willful misrepresentation finding.
While there will be H-1B workers who may be unable to travel abroad if they do not have valid H-1B visas on their passport at least until the visa ban expires on December 31, the impact on H-1B workers as a whole may not be as bad.
(Cristina Godinez is an attorney who has provided immigration solutions to families, businesses and at-risk migrants in the United States for over 15 years. She worked with the immigration law practice group of a top-tier global law firm and later, with the world’s largest immigration law firm. She is also the attorney at the faith-based Migrant Center of New York where she oversees the delivery of immigration legal services to low-income clients. Cristina is a member of the American Immigration Lawyers Association.)