Employment-Based Immigration Reform in Trump Era

On April 17, 2017, President Trump signed an executive order during his visit to Kenosha, Wisconsin, which specifically targets the H-1B visa program. The program allows 850,000 foreign workers to work in the United States. The order is a first effort to promote a “Buy American, Hire American” agenda, the key rhetoric of Trump’s campaign.  The order would tighten the rules awarding visas to skilled foreign workers and direct the federal agencies to enforces rules that bar foreign contractors from bidding on federal projects.

Earlier this year in February 2017, two Republican Senators introduced and sponsored the Reforming American Immigration for Strong Employment (RAISE) Act.[1] The goal of the Act is to increase wages for lower-skilled Americans by reducing the supply of lower-skilled immigrants and to rebalance the legal immigration system toward employment-based visas and immediate family households, rather than extended family members.

 Imposing new H1-B Cap and Setting U.S. Workers First standard

 The H1-B employment visa is a type of nonimmigrant visa available to foreign professionals, who have highly specialized knowledge and possess at least a bachelor’s degree or the equivalent and earn an annual salary of more than $60,000. The H1-B visa must be sponsored by a U.S. employer and will allow employment in the US for up to six years. Last year, US Citizenship and Immigration Services (USCIS) logged a record of 236,000 H-1B petitions and reached the statutory cap of  65,000 visas for fiscal year (FY) 2017.[2] Foreign workers comprise nearly 17% of the US labor force. Nearly two-thirds of the H-1B visas allocated in 2016 went to those in computer-related occupations. Companies such as IBM, Google, Apple, Amazon, and Microsoft import a sizable amount of talent. India-based companies like Infosys and Tata Consultancy Services (TCS)—the top two sources of applications for the H-1B—are major exporters of software and also they contract out thousands of workers to tech companies across the US.

Trump’s position on his campaign was that he will “end forever” the use of H1-B as a “cheap labor program.”[3] A common allegation about the current H1-B visa program is that overseas workers applying through the program may be willing to work for less than U.S. workers, pressuring wages and depriving American citizens of jobs. However, due to the need, and connection for being successful and use of foreign nationals, the government is not likely to lower the H1-B quota. [4] Consistent with the stated policy goal of protecting U.S. worker wages, the prevailing wage rate requirement for H-1B visas is likely to be strengthened. H-1B petitioners for STEM (Science, Technology, Engineering, and Math) occupations, which generally rely on higher wages, are likely to be given more priority considerations when H-1B demand exceeds supply.

Another anticipated change to the H-1B visa that will be beneficial for employers is a priority system will replace current random H-1b lottery. Currently, the new H-1Bs available each fiscal year are allocated on a random basis, which making hiring decisions problematic.[5] A priority system, based on various factors including the prevailing wage rate, the occupations, and the education level, will increase predictability for employers when hiring, especially for the many STEM employers who hire top graduates from U.S. colleges and universities and pay top wages.[6]

Modification of H-2B Program

Another popular visa option for foreign workers is the H-2B visa for temporary nonagricultural workers, which allows one-time or seasonal workers to enter the United States. It is worth mentioning that Trump is a beneficiary of hiring H-2B workers at his own businesses. According to the Palm Beach Post, the president won approval to hire 64 foreign workers under the program this year for his Mar-A-Lago Club in Palm Beach.[7] If the H-2B is negatively impacted, a grave impact is foreseeable on large hospitality entities around the country.

Enforce Nationwide Employment Verification

Considering employment draws immigrants to the United States, it is likely that we will see stricter enforcement of the Form I-9 verification process under Trump’s presidency.   More ICE officers and immigration judges will likely be hired to expedite cases.[8]  This increase in staff may lead to an increase in the number of worksite inspections for I-9 compliance.  It is also possible that there will be an increase in penalties and fines for any violations uncovered.  Therefore, it is important for employer’s to ensure that their paperwork, policies, and practices are in order in case of an audit.

To reduce reliance on undocumented workers, all U.S. employers under may be required to participate in E-verify, a currently voluntary online system that employers may use to verify their employee’s work authorization. Employers are required to verify work authorization for all employees in the U.S., but may do so using a paper form.

A Likely End to NAFTA Work Authorization

Based on the North American Free Trade Agreement (“NAFTA”), the TN nonimmigrant visa, as part of the trade deal, is available for Mexican and Canadian citizens to gain entry to the United States for jobs.  The E-1/ E-2 treaty trader and treaty investor categories are based on international treaties of trade and commerce. Unlike most immigration visas, both the E-1/ E-2 and TN visa categories are treaty-based, which places their somewhere between executive orders and statutes. Since the authority arises out of NAFTA, termination of the treaty would end the TN visa program, as well as the E-1 and E-2 programs for Mexican and Canadian nationals.

President Trump has strongly signaled his intent to renegotiate the terms of NAFTA and to exercise terminate rights if negotiations are unsuccessful. At this stage, the administration appears to favor renegotiation rather than termination of NAFTA, but the success of these negotiations will determine the continued viability of the TN visa classification. If negotiation attempts failed and the United States exercised its right to withdraw under Article 2205 after 6-month notice, the TN, E-1, and E-2 visa categories would be jeopardized.[9]  If NAFTA were allowed to expire, it would eliminate E-1/ E-2 visas for Canadian and Mexican individuals and companies until new treaties are in place.

An end to the TN temporary visa would have a great impact on many businesses and industries, especially IT engineering, accounting and staffing services. The business relying on these visas should be aware of and well prepared for this contingency by developing alternative employment and immigration strategies where possible. For example, pivot to applying for H1-B visas for workers that want to bring into the country instead of TN visas, even though H1-B numbers are capped and oversubscribed.

It is good for both employer and employee, to be informed and proactive to the timing and the next steps required concerning your immigration matters and in order to comply and succeed no matter what changes arise in the Trump Era.

~ Author: Xi Liu, Emory School of Law 3rd Year Law Student

[1] The two senators are Republican Senators Tom Cotton from Arkansas., and David Perdue from Georgia.

 

[2] CIS Completes the H-1B Cap Random Selection Process for FY 2017, US Citizenship and Immigration Services (2016), https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2017 (last visited Apr 6, 2017).

 

[3] DONALD J. TRUMP POSITION ON VISAS, (2016), https://www.donaldjtrump.com/press-releases/donald-j.-trump-position-on-visas (last visited Apr 7, 2017). “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.”

 

[4] Rebekah Mintzer, Five Employment Visa Issues to Watch In a Trump Presidency Corporate Counsel (2016).

 

[5] The lottery system has recently become the subject matter of a class action lawsuit, Tenrec, Inc. et al. v. U.S. Citizenship and Immigration Services (Case 3:16-cv-00995-SI, D. Or.)

 

[6] K&L Gates’ 2016 Election Guide: A Guide to Changes in Congress, http://www.klgates.com/electionguide2016/.

 

[7] Jeff Ostrowski , Trump again hires 64 foreign workers for Mar-a-Lago; little change in pay (2016), http://www.palmbeachpost.com/news/national/trump-again-hires-foreign-workers-for-mar-lago-little-change-pay/qqRJY7486L4i4gYz5L86ZJ/ (last visited Apr 7, 2017).

 

[8] Overwhelmed Courts Could Limit Impact Of Adding Immigration Officers, NPR News (2017), http://www.npr.org/2017/02/24/516845741/overwhelmed-courts-could-limit-impact-of-adding-immigration-officers (last visited Apr 7, 2017).

[9] James Moore, Josie Cox, Trump calls time on America’s trade deals – what does it all mean? (2017), http://www.independent.co.uk/news/business/analysis-and-features/trump-calls-time-on-americas-trade-deals-what-does-it-all-mean-a7542266.html (last visited Apr 7, 2017).