Administration Continues Attacks on H-1B Visas in New Executive Order

The Administration has once again aimed its sights at the H-1B visa program, this time in an August 3, 2020  Executive Order (E.O.) ostensibly directed at federal agencies, contractors and subcontractors.

The order requires federal agencies to review the extent to which federal agencies and their contractors and subcontractors are employing foreign professional H-1B visa temporary workers or are offshoring work and any resulting adverse effects to U.S. workers, and to submit a report within 120 days of the order’s issuance.

But the E.O.  also directs the Secretaries of the Departments of Labor and Homeland Security to “take action” within 45 days “to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites)”  and to ensure that employers with H-1B staff complied with existing laws requiring them to ensure that U.S. workers are not disadvantaged through the hiring of foreign workers. This section appears to apply to all employers, including those with no connection to federal agencies or contracts.

While this Executive Order may have little immediate impact, it underscores the administration’s antipathy towards the H-1B visa program.  It’s another example, following on the heels of the June 22, 2020 Presidential Proclamation barring entry of H-1B visa holders through the remainder of 2020,  of COVID-19’s  economic impact being used by the administration as a platform to diminish employers’ confidence in relying on H-1B program to get the talent they need.


Litigation Victory for Foreign Students

In August 2018, the administration issued a policy change revising how and when F or M student visa or J exchange visa holders could be considered “unlawfully present,”  making it more challenging, and sometimes impossible for years, for them to extend or change their visas or to gain permanent residency in the U.S.

In February 2020, a federal court issued a nationwide permanent injunction prohibiting the administration from applying the new policy.  The administration then appealed.

On August 3, 2020, the appeals court dismissed the case after the administration decided to drop its appeal.

This is a tremendous victory for foreign students, definitively blocking this attempt by the administration to upend  a decades-long policy on when these visa holders can be considered to be out of status and unlawfully present.

It is also a victory for employers who hope to employ foreign students upon completion of their undergraduate or graduate degrees, many of whom the policy change would have prevented from remaining and working in the U.S. for years.

You can read a more detailed explanation of the importance of this legal victory here.



Data Shows U.S. Losing Talent to Canada

A July 2020 Center for Security and Emerging Technology (CSET) data analysis reveals that from 2017 through 2019, the number of highly skilled, professional level noncitizens living in the U.S.  who emigrated from the U.S. to Canada through its skills-based Express Entry system increased by 128%.  That represents a loss to the U.S. of over 20,000 talented noncitizens who opted to leave this country to take up permanent residency in Canada in the past three years.  (This does not include the more than 50,000 asylum seekers who have given up trying to get asylum in the U.S. and have crossed into Canada to request protection there during the same time period).

Here is an excerpt from the report (footnotes omitted):

Governments around the world are competing to attract talent from abroad, and many have set their sights on the United States –in part because they think U.S. immigration policy is driving skilled foreign-born workers away.  Canada arguably leads this competition. In recent years, the Canadian government developed a simpler and more generous immigration system for skilled workers, nurtured cutting-edge tech companies capable of drawing talent from around the world, and even set up billboards in Silicon Valley encouraging immigrant tech workers to relocate north.

Given these efforts and close geographic and cultural ties, Canada is uniquely well positioned to attract talent away from the United States. But so far, the evidence that skilled workers are now avoiding or leaving the country in large numbers has mostly been anecdotal. At least before the COVID-19 pandemic, key U.S. immigration pathways such as the H-1B visa and employment-based green cards remained oversubscribed, and large majorities of foreign-born STEM PhD students at American universities hoped to stay in the United States after graduating.

At the same time, scattered but worrying signs have indicated that the situation may be changing. For example, the number of foreign STEM students studying in the United States has fallen, and growth in the STEM Optional Practical Training work program for international students has slowed considerably. Now, new data from Canada’s flagship skilled immigration program provide further evidence that America’s foreign-born talent base may be eroding.

While the authors of the data analysis note that the reasons behind this shift aren’t conclusive,

the fact that U.S. noncitizens are driving the trends explored in this paper strongly suggests the combination of Canadian recruitment and increasingly restrictive American immigration policy is playing a role in pushing talent north.

This administration has taken repeated actions to limit legal immigration.   The migration of talent north to Canada may be a bellwether of the benefits other countries will reap at our nation’s global competitiveness expense, if the U.S. continues down the road of adopting increasingly restrictive immigration policies.

You can find CSET’s paper here.