Here we go again. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions. But this year, with President Trump in office, will the conversations be different than in previous years?
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field. Typically, a foreign worker with an H-1B visa is admitted to the United States for a period of up to three years, and his or her visa may be extended for a maximum of six years. (There are some exceptions to this.)
Notwithstanding what you read in the news, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. (More on this below.) Employers must also provide existing workers with notice of their intention to hire an H-1B worker.
Since the H-1B category was created in 1990, Congress has limited the number of H-1B visas made available during each government fiscal year. The current annual cap is 65,000 visas, with 20,000 additional visas for foreign professionals who have graduated with a Master’s or Doctoral degree from a U.S. university. As I have indicated in previous articles, in recent years, the H-1B cap has been reached only a few days after the visas were made available.
Over the past year or so, now President Trump has spoken a lot about our immigration system, his theme being that we need to protect American workers. Although a lot of attention was placed on “building a wall” on our Southern Border, and making “Mexico pay for it”, a good deal was also said about overhauling other aspects of our immigration system, including the H-1B program.
During his campaign for president, then candidate Trump said the H-1B visa program was a “cheap labor program” that takes jobs from Americans workers.
Megyn Kelly asked about highly-skilled immigration. The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay. I remain totally committed to eliminating rampant, widespread H-1B abuse and ending outrageous practices such as those that occurred at Disney in Florida when Americans were forced to train their foreign replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”
“Cheap labor program”? Reality or myth?
I’ve written so much about this in the past couple of years my head is about to spin. There is a plethora (yes, a plethora) of evidence that foreign workers fill a critical need in our labor market, particularly in the STEM fields (i.e., Science, Technology, Engineering and Math). Foreign workers, including skilled foreign workers, help create new jobs and new opportunities for economic expansion.
So how do H-1B workers impact wages? Well, for starters, here are a few things to consider. As I noted above, prior to filing an H-1B petition with USCIS on behalf of a foreign worker, the employer must first file and have certified an LCA with the DOL. The LCA contains several attestations that the employer is required by law to make before the DOL may certify the LCA.
These attestations include, among others, that the employer will pay the required wage rate to the H-1B workers employed pursuant to the LCA. The required wage rate must be the greater of (1) the actual wage level paid by the employer to all other individuals at the job site “with similar experience and qualifications for the specific employment in question,” or (2) the prevailing wage level for the occupation in the area of intended employment. Cheap labor program? I think not.
Another attestation the employer must make is that it will offer the same benefits package on the same basis to similarly employed U.S. workers and H-1B workers. Eligibility and participation criteria must be the same for all workers. H-1B workers cannot be denied benefits because they are “temporary employees.” The employer must also attest that employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
A violation of any one or more of these attestation can result in serious penalties to the employer, and ultimately in debarment from participating in the H-1B program.
So, what is the empirical evidence as to wages? According to one study, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-born workers in 219 U.S. cities. In fact, a one percentage point increase in foreign STEM workers’ share of a city’s total employment was associated with increases in wages of 7 to 8 percentage points paid to both STEM and non-STEM college-educated natives, while non-college educated workers saw an increase of 3 to 4 percentage points.
What else you ask? According to another study, from 2009 to 2011, wage growth for U.S.-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher.
There is other data as well. And not only do H-1B workers positively impact wages, they positively impact employment rates as well.
Bottom line, there are too many myths (dare I say “fake news”) perpetuated about the H-1B visa category, and not enough focus on the important contributions H-1B workers make to the U.S. economy.
Two years ago, Coca-Cola’s 60 second Super Bowl advertisement featuring people singing a multilingual version of “America the Beautiful” sparked a national discussion of immigration and diversity. (Click here to read my comments in response to the bigotry that followed that ad. ) Is it any surprise, given the moment of history we’re living in, that Coca-Cola decided to dust it off for Super Bowl LI and run it again?
And they weren’t the only ones who ran a political advertisement in the Super Bowl. Airbnb, the community marketplace for people to list, discover, and book accommodations around the world, ran an advertisement that promoted its view of an open, multicultural world, reflecting its commitment to housing refugees. “We believe no matter who you are, where you’re from, who you love, or who you worship, we all belong. The world is more beautiful the more you accept.” A hashtag at the end of it read #WeAccept, and it went viral on social media by halftime of the game.
84 Lumber, a Pittsburgh-based national building supply chain, ran an advertisement that was so controversial that Fox wouldn’t air the complete version of it. (It’s available here and worth a look.) It featured a Spanish-speaking mother and daughter making a grueling trek across Mexico in search of a better life. Apparently the depiction of the mother and daughter confronting a border wall between the United States and Mexico was “too controversial.”
Budweiser’s Super Bowl advertisement featured the journey that Adolphus Busch made from Germany to St. Louis in the 1800’s and the discrimination he overcame on his way to success. Unbelievably, the hashtag #BoycottBudweiser trended earlier in the game (the advertisement had been running for days before the game). Later on, however, that same hashtag was being used by others to defend Budweiser and mock the boycotters.
And then there was Audi. Audi’s advertisement advocated equal pay for women. Narrated by a father asking questions about what to tell his young daughter one day as she competed in a go-cart race, he said, “Do I tell her that despite her education, her drive, her skills, her intelligence, she will automatically be valued as less than every man she ever meets?” The young girl won the race, and her father remarked that maybe he will be able to “tell her something different.” The advertisement ends with Audi of America’s statement that it is “committed to equal pay for equal work.”
We are living in an unprecedented moment in history. The Super Bowl is without question the biggest day of the year for advertisers. And in this moment of history, companies did not shy away from calling out President Trump and his politics (even if none specifically used his name), offering up loud rebukes against xenophobia and sexism.
Let me remind everyone that we are a nation born of immigrants. The President’s election, and his recent actions on immigration and other issues, has divided our country. Advertisers paid $5 million for 30 seconds of air time to reach more than 110 million viewers. I think they were very successful. Let’s hope their messages were loud and clear to Washington.
I received a call the other day from a friend of mine in Boston who said he wanted my help in applying for citizenship. He’s been a permanent resident (i.e., Green Card holder) for many, many years, and I know for a fact that he’s an upstanding individual (and the Commonwealth of Massachusetts knows that too since he’s a restaurant owner and maintains a liquor license). I asked him why he now wanted to become a U.S. citizen? As you can imagine, he expressed concerns about just being a permanent resident under President Trump. This individual is Irish to the core and he should have nothing to worry about. His concerns, however, are well-founded.
Not everyone who is a permanent resident becomes a U.S. citizen (i.e., naturalizes), nor is there any legal requirement that one must naturalize. However, permanent residents who naturalize gain important benefits, not the least of which (these days) is security from deportation (in most cases) and the ability to travel with a U.S. passport.
Under the law, to qualify for U.S. citizenship, permanent residents must (a) be at least 18 years of age, (b) reside continuously in the United States for five years (or three years if they are spouses of U.S. citizens), (c) be of good moral character, (d) demonstrate the ability to read, write, speak, and understand English (unless they are exempt from this requirement), (e) pass an examination on U.S. government and history (unless they are exempt from this requirement), and (f) be willing and able to take the naturalization Oath of Allegiance.
Seems simple, right? Sometimes it is. Other times, however, issues arise as to whether someone is a person of good moral character (because of something he or she might have done in his or her past), continuous residency in the United States, to name just a couple.
Is it worth it? I don’t often counsel clients to become a U.S. citizen. I think that’s a very personal decision, and there are many factors that go into that decision. However, these days, I personally think there’s much more at stake for permanent residents, whether they’re from one of the seven predominantly Muslim countries designated in President’s Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” or otherwise.
Few people expect to be arrested for a crime. But the risks for permanent residents who are arrested for a crime, even a seemingly minor one (like a misdemeanor under state law) are much, much higher. Permanent residence can be revoked and the individual can be deported. While there are many benefits associated with being a permanent resident, “permanent” does not necessarily mean “permanent.”
And if not for you, what about your children? We all know that kids make mistakes, and many times they’re really stupid ones. Immigrant kids are especially at risk if they make stupid mistakes. For example, with few exceptions, most convictions related to the use of illegal drugs can result in deportation of a permanent resident. So can a conviction related associated with sexual conduct by a young adult with a person who is a minor. Indeed, many immigrants who have lived in the United States with their families as permanent residents since they were very young children have been deported after being convicted of crimes they committed as youth or young adults. Becoming a U.S. citizen can protect you and your children from deportation.
We are living in an unprecedented moment in history, and it feels like the rules of engagement in the world of immigration are changing by the day. I would not normally counsel clients (or anyone for that matter) to become a U.S. citizen. However, in these uncertain times, I think it’s very much worth looking into.
Tags: President Trump, Executive Order, Refugees, Muslims, Deportation, Removal, Citizenship, Naturalization.
To say that this past weekend’s events were extraordinary would be an understatement. Here’s a recap and the very latest on President Trump’s Executive Order (“EO”) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In sum, the EO does six (6) primary things:
1. Suspension of U.S. Refugee Admissions Program. The EO suspends the U.S. Refugee Admissions Program for 120 days.
2. Ban on Syrian Refugees. The EO halts the processing and admission of Syrian refugees indefinitely until President Trump determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.
3. Ban on Entry of Nationals of Muslim-Majority Countries. The EO bans immigrant and nonimmigrant entries, for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added as well.
4. Requires In-Person Interviews for Most Nonimmigrant Visa Applicants. The EO suspends the Visa Interview Waiver Program, essentially requiring all nonimmigrant visa applicants to attend an interview unless an interview is statutorily exempt.
5. Screening of all Immigration Benefits. The EO directs federal agencies to develop screening standards and procedures for all immigration benefits to better identify fraud and detect whether a person intends to do harm in the United States.
6. Biometric-Entry Exit. The EO directs agencies to expedite the completion and implementation of a biometric (e.g., fingerprinting) entry-exit system that includes reporting requirements.
The EO was effective immediately. Chaos ensued as foreign nationals were detained at airports around the world, pulled off planes set to depart to the United States, or otherwise had their visas cancelled. Advocacy groups sued, and people all over the United States rallied in opposition to this EO. (As you will recall, there were two other EO’s issued by President Trump earlier last week.)
On Saturday, a federal judge in the Eastern District of New York issued an order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. Later, a federal court in Massachusetts issued a decision which barred federal officials from detaining or removing individuals subject to the EO.
There are so many questions and concerns that my colleagues and I have about this EO (and the others too), and of course there’s little to no clarity coming out of the White House. (Indeed, there’s contradicting information coming out of the White House and the Department of Homeland Security on some issues, including whether the EO applies to lawful permanent residents, i.e., Green Card holders).
So, where does that leave us? It’s way too early to tell as the situation is very fluid. However, I am advising my clients who might be affected by the EO (and frankly many others as well as there is not a lot of clarity on important issues, e.g., how this effects dual nationals where one nationality is of a Muslim-majority country) to refrain from traveling outside of the United States. Plain and simple, if you don’t have an urgent or compelling reason to travel outside the United States, then don’t.
Hot off the press. Today, President Trump issued two (2) executive orders relating to immigration, one on border security (e.g., calling for the construction of a wall along the U.S.-Mexico border, etc.) and one on interior enforcement (e.g., including various provisions relating to enforcement of United States immigration laws, including withholding federal grant money from sanctuary cities).
Like President Obama before him (who he all so often criticized for using executive actions to enforce our immigration law), President Trump is using executive actions to enact these new immigration policies. (Thus far, there have been no changes announced as to President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program.)
Here’s a high-level overview of what we know.
1. Southern Border Wall. The President announced that the United States will construct a wall along our U.S. – Mexico border, based apparently on authority under the Secure Fence Act of 2006 signed into law by President George W. Bush (which called for 700 miles of “reinforced fencing” along the U.S. – Mexico border, along with enhanced surveillance systems). At this point, there are just rumors as to how this will be paid for.
2. Detention for Illegal Entry. The President is seeking new policy guidance for all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the Immigration and Nationality Act, including the termination of the practice commonly known as “catch and release” (whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law).
3. Curbing Funding to Sanctuary Cities. The President’s executive orders also seek to end Sanctuary Cities by stripping grant funding for those cities.
4. Temporarily Halting Refugee Admissions. The President is seeking a 120-day pause in refugee admissions to the United States, with the exception of those fleeing religious persecution if their religion is a minority in their country of nationality.
5. Banning Foreign Nationals from Certain Muslim-Majority Countries. The President is banning entry into the United States for at least thirty (30) days all immigrant and nonimmigrant nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. He also may require that all applicants from those countries (and perhaps others) demonstrate that he or she is not a security or public-safety threat to the United States.
6. Uniform Screening for Immigration Benefits. The President announced that there will be added requirements to screenings and procedures for all immigration benefits to identify fraud and to apparently detect an applicants’ intent to do harm. (Perhaps this is the “extreme vetting” we heard so much of on the campaign trail.) The President is also suspending the Visa Interview Waiver Program, essentially requiring all visa applicants to attend a visa interview, unless they are otherwise exempt from doing so under the law.
This is obviously a fluid situation, so I will endeavor to update this as appropriate.
“We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were essentially the very first words uttered by now President Trump in his inaugural address.
When I first went back to re-read the President’s speech, I didn’t think much of this particular statement. Upon reflection, though, given the President’s rhetoric on the campaign trail, and even since he was elected, I find it a bit ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”
“All of our people.” Presumably this means everyone that’s here, right? Citizens and non-citizens alike? Or does “our people” have a more limited meaning? Just citizens? What about permanent residents (i.e., Green Card holders)? What about people lawfully here on temporary visas? Am I reading too much into the President’s statement?
I just received an email from a colleague who, in a very different context, said “Language is important. Actions are important.” He was right in the context he used it. On Day 1 of a Trump presidency, language is very important. For every other day, actions will be very important.
“Every decision on … on immigration … will be made to benefit American workers and American families.” Really? What about everyone else who are lawfully living in the United States?
I have clients and colleagues calling me daily about what a Trump presidency means on the immigration front. And not just what I describe as at risk, or undocumented folks. Professionals too. I’ve tried to answer that question so many times, but the truth is, I really don’t know. Frankly, no one knows beyond those that are closest to the President. I suspect we’re about to find out.
Anecdotally, the news has not been good, and by all accounts, the Executive actions that former President Obama took (e.g., DACA, etc.) are no doubt in jeopardy.
President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity. Now let’s get to work on a compassionate way to make that happen. (And for God’s sake, let’s tackle some meaningful immigration reform in the process.)
I think I went to bed around 10:30 PM on election night. Pretty early for sure. But once the analysis was coming in on voting trends in Florida and Michigan, I knew the writing was on the wall.
So what does a Trump presidency mean in the world of immigration? Potentially a lot. I am very fortunate to have a diverse law practice, and within our immigration practice, we serve both corporate clients (e.g., from start-ups to mature businesses) and individuals and families. A fair amount of the individuals that we serve are what I consider to be at-risk; some are here in the United States lawfully, and others not. Many do not want to go home. These are amazing people, with amazing and often horrifying stories to tell of why they came to the United States, and how. Unfortunately, because of what we’re seeing in the aftermath of the election, many of them are now scared, really scared (including some of our corporate clients)!
On the one hand, we have business clients who are concerned about their foreign national employees, whether they’re going to be able to remain here, whether their working status will be able to be extended, whether they can safely take business trips outside the United States and return unimpeded. All sorts of questions. I try to assure these folks that nothing, yet anyway, has changed, as far as their employees are concerned.
And then we have what I refer to as our at risk clients, some here lawfully and some not, many who came to the United States leaving terrible and dangerous situations back in their home countries, and who are legitimately fearful to return. Many of these individuals are unaccompanied minors, kids who have been abandoned by their families back home and who made perilous journeys across our Southern border, seeking a better life. I am very concerned about this population.
This is the time when scammers, and so-called notarios, are likely to come out of the woodwork. We’re advising clients not to fall for scammers or notarios who will prey on this at risk population, people who are often confused and are no doubt fearful about the election results.
We’re receiving daily calls from clients and potential clients who are afraid of what the next four years may mean to them and their families, their businesses, and their communities. Our job now, more than ever, is to work with them, help them realize the American dream, and help them overcome any obstacles that may be created by our new President and our immigration laws and regulations.
When we receive these calls, our first response is “don’t panic”! With perhaps one or two exceptions, we do not know for sure exactly what will happen when President-elect Trump takes office in January. We’re advising our clients not to make any hasty or rash decisions, and instead take the time necessary to review their particular situation, get the facts, review the law, and know their rights.
One of the things that the President-elect said he would do on “Day 1” is rescind many of the executive actions put into place under the Obama Administration. The biggest one, in the immigration arena, is no doubt President Obama’s 2012 initiative known as Deferred Action for Childhood Arrivals (“DACA”). That program allows some aliens who are unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.
As of June 30, 2016, U.S. Citizenship and Immigration Services (“USCIS”) had approved close to 750,000 DACA applications (since 2012). We do not know if, how or when DACA might end. President-elect Trump could take action on DACA immediately or soon after his inauguration, weeks or months later, or perhaps not at all if he softens or changes his position (as he has so often done of late).
Finally, one of the biggest things that we are highly recommending to our clients is, if they are eligible, to apply for citizenship in the United States. Of course, everyone’s situation is not the same, but if someone meets the basic eligibility requirements for becoming a U.S. citizen, and they have no adverse factors in their background that would make them ineligible for citizenship (or worse, potentially removable from the United States), we’re advising them to take a hard look at applying for U.S. citizenship. Citizens of the United States have so many more protected under the law than someone who is not.
These are interesting times we live in. And its only just begun.