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My kids are of the age where I am still watching movies like Minions. Truth be told, I like them. Indeed, on some level, particularly with respect to their soundtracks, I think they’re made with adults in mind. According to Merriam-Webster, the definition of a “minion” is “a servile dependent, follower, or underling,” generally to someone powerful (or someone who perceives him or herself to be powerful). The origin of the word is French.
I’ve used the word “minion” in these articles from time to time, generally with reference to Stephen Miller, the President’s policy advisor who reportedly is the primary architect of the President’s restrictionist immigration policy, including the President’s recent proclamations restricting entry of some foreign nationals to the United States.
On April 22, 2020, the President signed a proclamation temporarily suspending the entry of certain “immigrants” into the United States in light of the COVID-19 pandemic. Exactly two months later, on June 22, 2020, the President signed yet another proclamation continuing his original proclamation and also now suspending the entry of certain “nonimmigrants” into the United States. As I’ve previously noted, the practical effect of these proclamations is not much since most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did the President put out this second proclamation? As always, politics as usual. Red meat to his base.
It has always amazed me, however, that Mr. Miller, himself a descendent of immigrants, could be advocating for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.
Is Mr. Miller ashamed of his immigrant past? I am open to any reasonable explanation as to why Mr. Miller advocates for these anti-immigrant positions.
The President’s most recent proclamation essentially blocks access by U.S. companies and others to certain nonimmigrant workers until at least the end of 2020, including H-1B, H-2B, J-1 and L-1 nonimmigrants (and their family members). As reported in one of my local newspapers, the Albany Times Union, the President’s proclamation will negatively impact employers, families, colleges and universities, health care facilities, and seasonal businesses. The President’s proclamation will also delay America’s economic recovery from the COVID-19 pandemic.
The H1-B is a visa that allows a foreign national to work temporarily for a U.S. employer in a specialty occupation position such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. The H-2B is a visa that allows a person to work in the United States for a U.S. employer in a seasonal field outside of agriculture, like a hotel worker in a resort community. The J visa refers to, among several other possibilities, an exchange visitor and under the President’s most recent proclamation is limited to those working in specific capacities, like as a camp counselor, teacher, au pair, or pursuant to the J-1 summer work travel program. Finally, an L visa refers to intracompany transferees who work in positions that require specialized knowledge or who are working in an executive or managerial capacity.
The continued use and availability of these visas to a large cross-section of U.S. businesses and industries is absolutely essential to a successful economic recovery from the COVID-19 pandemic.
The premise behind the President and his minion’s policy is to protect U.S. workers, particularly as we work (no pun intended) our way through the economic consequences of the COVID-19 pandemic. The White House has said that these proclamations will protect or create over half a million jobs. (Although significant, it’s a drop in the bucket when you consider the overall job loss since March 2020.)
But the President and his minion’s basic premise is still fundamentally flawed. And I’ve written about this ad nauseum in this space over the last several years. Bottom line. Immigrants, whether those here temporarily or those who strive to be here permanently, are a positive influence on the U.S. economy. You can find any number of resources that support this premise, but for those who may suspect my views, feel free to check out The George W. Bush Presidential Center’s “Economic Growth Initiative”, which does an excellent job debunking all these ridiculous myths about the negative impact of immigrants on our nation and our economy.
Forget right and left. Let’s move forward, all of us, together.
Whether you’re from a red state or blue state, one thing is undeniably true, all politics aside: over 103,000 human beings have died in the United States since the end of February as a result of the disease caused by the novel coronavirus (or COVID-19). That’s a massive amount of human loss in a very short period of time. I find that very hard to process.
Not that there’s any equivalency, there’s also been a vast amount of change in our personal and professional worlds. On the personal side, many if not most of us are working remotely, if we’re working at all, and our professional lives are now often interwoven with our personal lives as we manage work-life in a family setting. For some of us, that will soon be changing.
I have been fortunate to be able to go to an office every day. There’s no one else here. So while my work life is a bit lonely, I can say for sure that I am able to get work done without four boys running, yelling, complaining, laughing, and sometimes even crying in the background. Those of you who know me personally know that my wife is the mother of the year, every day of the year.
And what of my work? Immigration law is challenging enough in “normal” times, with the law itself, not to mention the myriad of changes that happen often daily. During this COVID-19 pandemic, however, the changes have not only been often, they’ve been dramatic as well.
Although the “real” news has reported the President’s Proclamation restricting immigrant visa issuance, as a practical matter, all visa processing by the Department of State (“DOS”), as well as the adjudication of many immigration benefits here inside the United States by U.S. Citizenship and Immigration Services (“USCIS”), have practically stopped (or at least are now very delayed and backlogged). In addition, entry into the United States along our northern and southern borders, including by asylum seekers coming from the south (despite being told otherwise), has also been restricted. Thousands and thousands of low risk noncitizens are also in immigration detention despite the reported very high risk of COVID-19 transmission in jails, prisons, and federal detention centers that U.S. Immigration and Customs Enforcement (“ICE”) uses to hold noncitizens. Finally, the COVID-19 pandemic has led to the suspension of almost all non-detained immigration court hearings, and has also limited the normal functioning of those other courts that remain open.
Any one of these changes would be dramatic for our clients in ordinary times. But all four of them at once? And during a pandemic when everyone is stressed out from being cooped up indoors for months, perhaps out of work, and perhaps also losing a family member to coronavirus?
Add to all this that President Trump, and his minions like Stephen Miller, have used the COVID-19 pandemic to pursue policy changes, mostly by regulation and proclamation, that his administration has failed to accomplish by legislation or in the courts during his presidency (e.g., eliminating the ability for noncitizens to pursue asylum at our southern border).
While we’re all impacted by COVID-19, I would argue that its impact on noncitizens, and particularly those who hold essential worker jobs, is far worse than the average person. Thus far Congress has at least endeavored to provide benefits or some form of relief to U.S. citizens and noncitizens who are lawfully in the United States. But many immigrant are affected differently (e.g., many immigrants are not eligible to receive direct payments and support, and many others are not able take advantage of the increased availability of health care services), and many noncitizens who are here in the United States, whether lawfully or otherwise, right or wrong, are the very essential workers that you and I rely on every day of our lives (e.g., health care workers, grocery store workers, dairy workers, and the list goes on and on).
These are stressful times. Both foreign and U.S. workers in all of our communities are suffering the impacts of COVID-19, whether economic or otherwise, and if large parts of the population are intentionally being excluded from the federal government’s economic support, this will have a widespread impact on everyone. We all deserve better.
So between COVID-19 (2.0) and COVID-19 (3.0), President Trump signed a proclamation (not an executive order as many have reported) temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. What exactly does this mean? Practically, not much. Most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did he do it? Politics as usual.
First, some details. The President’s proclamation suspends the entry of any individual seeking to enter the United States as an “immigrant” who (a) is outside the United States on the effective date of the proclamation (the proclamation went into effect at 11:59 pm (ET) on April 23, 2020), (b) does not have a valid immigrant visa as of April 23, 2020, and (c) does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter. The proclamation is in effect for sixty days.
The following individuals are exempt from the President’s proclamation: (a) lawful permanent residents (i.e., Green Card holders); (b) individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research or other work essential to combatting COVID-19, as determined by the Department of Homeland Security (“DHS”) and the Department of State (“DOS”); (c) individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program; (d) spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on certain types of visas; (e) individuals who would further important U.S. law enforcement objectives (again, as determined by DHS and DOS); (e) members of the U.S. Armed Forces and their spouses and children; (f) Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa; and (g) individuals whose entry would be in the national interest (also as determined by DHS and DOS).
But here’s the thing. As I alluded to at the outset, most routine visa services at U.S. embassies and consulates across the world have been suspended since March 20, 2020. (1) U.S. Citizenship and Immigration Services (“USCIS”) has, until at least June 4, 2020, suspended in-person services (although it does continue to accept and process applications and petitions, which are processed at its “service centers”, which are not accessible to the general public). The U.S. borders with Canada and Mexico are closed for non-essential travel until, at this point, at least May 20, 2020. And, with few exceptions, the entry of individuals who were in countries such as China, Iran, the United Kingdom, and Ireland, during the 14-day period immediately before their desired date of entry into the United States, has also been suspended. (2)
Interestingly, though for purposes here, individuals who hold nonimmigrant visas (i.e., temporary visas like tourist visas or some work visas) are not prohibited from coming to the United States under the Proclamation. Why not? The President’s proclamation requires a review of temporary visa programs within thirty days and seeks recommendations to stimulate the U.S. economy to ensure “the prioritization, hiring and employment” of U.S. workers. And there you have it. “It’s the economy stupid!”
In the face of all the criticism about how he personally has handled (or mishandled) the COVID-19 pandemic, I am surprised it took so long before he resorted to distraction, blame, and fearmongering. Instead of focusing on the public health crisis that we’re all dealing with on a daily basis, the President has cloaked the proclamation as a means to “put unemployed Americans first” amid the massive job losses that all workers (both U.S. and foreign born) are experiencing as a result of COVID-19. It’s nothing more than a political ploy. It’s fodder for his political base.
I have written about, and substantiated, on a number of occasions, that immigrants create jobs, are innovators and entrepreneurs, and meet important U.S. workforce needs. A study written by Madeline Zavodny, an economics professor at the University of North Florida, for the National Foundation for American Policy, concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.” (3)
When the proclamation was announced, and even days before with the lead-up, I was getting panicked calls from current and potential clients about what impact the President’s proclamation would have on their cases or situation. This is nothing more than a distraction to what I personally believe is the real issue. The President’s concern over the election.
I am not at all suggesting that our government should not be doing something to control the entry of any individual into the United States who may have been, during the 14-day period immediately before their desired date of entry into the United States, in an area that is severely impacted by COVID-19. Not at all. But the President’s policy of limiting immigrants from entry into the United States has no rational basis. He’s not saving American jobs; he’s also not making us any safer or more secure. To restore our country’s health, physically, mentally and economically, we need to keep our focus on moving forward together. We are stronger together.
The United States is facing a public health crisis, and a resulting economic crisis, unlike any that we have ever faced in our lifetimes. We need a better and more organized public health response. This will get our society back on track and our people back to work. Everything else, especially the President’s proclamation, is a distraction from this priority.
(1) U.S. embassies and consulates continue to provide urgent and emergency visa services as their resources allow. And, the DOS, at this point, continues to process visa applications for farm workers and medical professionals assisting with COVID-19.
(2) Importantly, asylum seekers are not prohibited from coming to the United States.
(3)Madeline Zavodny, “Immigration, Unemployment and Labor Force Participation in the United States,” National Foundation For American Policy, NFAP Policy Brief , May 2018.
This time that we all find ourselves in is surreal to say the very least. Nothing is as it should be, and we truly have no idea when the old normal will be new again. Yet certain aspects of our lives must continue to move forward, including in my case, the work that needs to be done for my clients. As complex as the world of immigration is, it is made unbelievably more so when COVID-19 (Coronavirus) changes the landscape almost moment to moment.
The Departments of Homeland Security and State have taken some steps towards flattening the curve (e.g., cancelling in-person appointments, cancelling visa interviews, etc.). Far more aggressive action is needed, however, to ensure the safety of all our federal employees, our immigrant clients, and their representatives.
Although the Executive Office of Immigration Review (“EOIR”) has suspended all immigration hearings for non-detained aliens, they inexplicably continue to go on for detained aliens, at great risk to the very same people I’ve noted who need to be protected. The EOIR should close all the immigration courts, yet continue to ensure reasonable and safe (e.g., telephonic or video) access to counsel for detainees. Equally as important, the Department of Homeland Security (“DHS”) needs to ensure and protect immigrants from falling out of status during this awful COVID-19 pandemic.
For example, U.S. Citizenship and Immigration Services (“USCIS”) should extend all filing deadlines, excuse late filings and grant automatic extensions of stays for individuals whose authorized period of stay is set to expire. Likewise, the U.S. Department of Labor (“USDOL”) should relax its rules so individuals who are laid off or furloughed can maintain their lawful status.
I can’t tell you how many calls I’ve received over the last week or two from corporate clients asking questions about what to do about particular employees, some of whom are here, for example, on H-1B nonimmigrant (or other similar) visas and who would or will be adversely impacted if they were laid off or furloughed. Our immigration law, unfortunately and not surprisingly, is not very forgiving in these situations.
For example, employers who hire individuals who work for them on H-1B nonimmigrant visas, know that USDOL’s regulations require that they continue to abide by the labor conditions to which they agreed when they filed the H-1B petition with USCIS. These are the terms set forth in what is called the Labor Condition Application (“LCA”) filed with the H-1B petition. These concern payment of the required wage, full-time vs. part-time employment of the employee, and notice to employees in the area of intended employment.
As we all know, because of the COVID-19 outbreak, many local and state governmental authorities are instituting shelter-in-place, work-from-home, or stay-at-home orders to facilitate social distancing. In addition, the economic fortunes of many companies have fallen dramatically since the COVID-19 outbreak, including many small businesses that have all but shut down. This has prompted many employers to reevaluate their business operations. Consequently many employers are asking what happens to their foreign workers if they furlough, layoff, reduce hours, or they otherwise become unproductive during this crisis.
USDOL regulations require H-1B employers to pay the wage set forth in the LCA. Given that, how are employers able to place an H-1B worker in non-productive status while at the same time maintain compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status? The short answer is, they can’t.
“Non-productive status” is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), under the regulations, the employer is still required to pay the required wage.
Likewise, an employer cannot furlough, layoff, bench, or otherwise render an H-1B worker non-productive and, as a result, stop offering the required wage, if the employee is not able to work from home during a COVID-19 pandemic initiated “stay at home” order from federal, state, or municipal government authorities. If an employer did so, it would risk liability such as fines, back wage obligations, and, in serious cases, debarment from the USDOL’s temporary and permanent immigration programs.
As I explained to a client the other day, an employer could seek to convert a full-time H-1B worker to part-time, but this would require not only the filing of a new LCA to reflect this change, but also the employer would then be required to file an amended H-1B petition with USCIS (expending additional fees along the way). Although the H-1B worker would be permitted to commence part-time employment upon USCIS’s receipt of the amended H-1B petition, before this happens the employer would need to make the decision to undergo this effort, which is no inexpensive effort in normal time, let alone these times.
USCIS should suspend (or even waive) the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in an H-1B worker’s employment as a result of the COVID-19 outbreak. Not only is there legal authority for USCIS to do this, it’s also clearly the right thing to do. These are unprecedented times. Our government needs to show some leadership (and heart) so as not to make a terrible situation worse on all employers affected by COVID-19 and their foreign-born employees.
Tags: Coronavirus, COVID-19, Immigration.