Administration’s Professional Foreign Worker Changes Cost U.S. Businesses $100s of Billions

The administration has put foreign workers in its crosshairs, costing U.S. businesses hundreds of billions of dollars.

In June 2020, a Presidential Proclamation barred the entry of most foreign workers through the end of 2020 with the stated goal of preventing job competition.  A new Brookings Institute working paper estimates that this action immediately  cost 471 Fortune 500 companies over $100 billion in lost market valuation.

Doubling down, on October 8, 2020, the administration released interim final Department of Labor (DOL) and Department of Homeland Security rules without any prior notice and public comment period, that attack the current H-1B specialized occupation foreign professional worker visa program and the professional worker permanent residency process.   In the preamble to the DOL rule, the administration estimates that the effects of the new rule, including lost access to talent, turnover costs, and having to pay any foreign workers more than they would pay comparable U.S. workers, will cost U.S. businesses more than $198 billion over the next 10 years.

The rules, which took effect immediately, apply to current, not just to future foreign professional workers.   In a press conference, U.S. Citizenship and Immigration Services Senior Official Performing the Duties of the Director Ken Cuccinelli stated that the administration expects up to a third of the hundreds of thousands of H-1B visa holders currently working in the U.S. would not qualify for renewals of their status under the new rules – leaving their employers, and their communities, high and dry.

Maine currently has hundreds of H-1B visa holders working in our hospitals, colleges and universities, biotech and biopharmaceutical, research, high tech, and other businesses and facilities in every corner of the state. 

Apart from the financial toll of the administration’s attacks on the viability of the H-1B and employment based immigration programs, the potential harm to our nation’s health care system, where thousands of H-1B professionals serve, including over 70 in Maine in FY2019 (the last full year for which data is available), during a pandemic is staggering.

A federal court ruling partially blocked application of the Presidential Proclamation for the remainder of 2020, and lawsuits have been filed challenging the new rules.   Let’s hope the court system permanently reins in these costly and damaging attacks by the administration.

Lawsuits Filed by Business Groups and Higher Education Challenge New Immigration Rules

On October 8, 2020, as this prior post explains, the administration issued new rules raising substantial new barriers to employers that want to petition for residency or for temporary work visas for talented foreign workers.  The rules dramatically increase the amount that foreign workers must be paid  to far exceed the prevailing wage, and also narrow the definition of “specialty occupation” to exclude whole swaths of historically eligible occupations.

On October 19, 2020, the U.S. Chamber of Commerce, together with the National Association of Manufacturers, other associations and universities, including the Presidents’ Alliance on Higher Education and Immigration, California Institute of Technology, Cornell, Stanford and University of Southern California filed a lawsuit challenging the new rules issued by the Departments of Labor and of Homeland Security.

Another lawsuit was filed on October 16th by Purdue University, joined by other universities, tech companies and associations including the Information Technology Industry Council, challenging the Department of Labor’s rule impacting  the H-1B visa program.

Both lawsuits seek to enjoin application of the new rules, which broke with the norm by being issued as interim final rules, taking effect without providing the prior notice and a public comment period required for proposed rules.

The new rules will cause extreme disruption for employers and employees alike, since they apply not only to future, but also to  current professional level employees on H-1B visas or whom employers are sponsoring for employment-based permanent residency.

As the complaint in the U.S. Chamber of Commerce lawsuit states,

These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.

The complaint notes that H-1B professional workers

perform crucial services where U.S. labor markets lack capacity, boosting economic output and helping businesses grow. They meet essential needs in underserved communities; more than 10,000 physicians are employed each year via the H-1B program to provide medical services, many in remote areas. H-1B workers are critical members of U.S. higher education institutions, performing ground-breaking new research and educating thousands of American students. All this productivity, in turn, creates net new jobs for the domestic labor market. And H-1B visa holders inject ingenuity, entrepreneurship, and cultural diversity across the United States.

This summary holds true in Maine, where hundreds of H-1B visa holders are serving our communities in hospitals from York to Aroostook counties, working at Maine’s colleges and universities, and at leading innovation employers including IDEXX, JAX, Tyler Technologies, and WEX.

For more information about the extreme changes made by the new rules, the impact they will have, and the lawsuits challenging them, see these analyses in Forbes here, and here.

Dramatic Drops in Legal Immigration to U.S. in FY 2020

Fiscal year 2020 ended on September 30, 2020, and while complete data is not yet available, an analysis of governmental data through August 31, 2020 shows that legal immigration to the U.S. fell by 92 percent in the second half of the fiscal year.

The Cato Institute analysis compares the rate of immigration to historical rates and finds that

The 92 percent drop in the second half of FY 2020 is larger than the drop during any single year in American history—larger than the 73 percent decline in 1915 coinciding with the start of World War I, larger than the 70 percent decline in 1925 coinciding with Congress closing legal immigration from Europe, larger than the 63 percent declines in 1931, 1942, and 1918 following the onset of the Great Depression and U.S. entries into each world war.

The drop is not a necessary byproduct of the COVID-19 pandemic, although the administration has seized upon the pandemic to close the nation to entry of virtually all immigrants from abroad, and to most foreign workers (both actions leading to ongoing challenges in the federal courts), when less severe measures, such as requiring all new immigrants to quarantine for two weeks upon arrival could have sufficed.   The drop also springs from capping FY 2020 refugee resettlement at record lows and issuing regulations designed to slash immigration by immediate families of U.S. citizens and permanent residents, among other changes to the nation’s legal immigration framework that preceded the pandemic.

As the Cato Institute notes,

This historic slowdown is important for both the short‐​term and long‐​term economic growth of the United States. Fewer workers mean that jobs will take longer to fill and slow the economic recovery, and in coming years, fewer workers will support more retirees. If the United States remains closed long enough, it could push worldwide patterns of immigration away toward other countries with more welcoming policies.

The administration continues to introduce changes that will cut even skills-based immigration, such as new interim final rules announced on October 8, 2020.   The administration’s hostility to immigration should give us all pause.

New Rules Raise Barriers to Employers’ Ability to Hire Global Talent

The Departments of Labor and  of Homeland Security, in an unusual move, issued two interim final rules on October 8, 2020 raising new barriers to employers who seek to gain H-1B visas for specialty occupation temporary professional workers, or who are petitioning for permanent residency for their foreign employees.  The administration estimates that the new H-1B rules will cost employers $4.3 billion over a decade, and result in at least a third fewer approvals annually of H-1B visa petitions.

The Department of Labor (DOL) rule, effective on October 8, 2020 and applicable to applications already filed and pending with the Office of Foreign Labor Certification’s National Prevailing Wage Center (NPWC) as well as to petitions filed on or after that date, substantially increases the amount that employers must pay the employees for whom they seek H-1B visas or permanent residency.   The Department of Homeland Security (DHS) rule, effective on December 7, 2020,  changes decades-long definitions of key terms applied in the H-1B visa context such as “specialty occupation”, “employer-employee relationship” and “worksite”,  to make fewer positions eligible for H-1B visas.  It also shortens the duration of  H-1B visas from 3 years to one year in some cases, and provides for increased worksite inspections of employers of H-1B visa holders.

This Forbes article provides a detailed analysis of the substantial changes made by these interim final rules.

Ordinarily, new rules are issued as proposals and do not take effect until the public has had the opportunity to comment on them, and the administration has been able to consider and sometimes make changes based on the comments.   It is striking that the administration chose to issue these changes as interim final rules, a mechanism to be used only in exceptional cases where urgency is required, a circumstance that doesn’t apply here, given that these changes have been in the works since at least 2017.  Should the November 2020 presidential election result in a new administration, it could simply jettison a proposed rule and never finalize it.   An interim final rule must go through a review process and will take much longer for a new administration to revoke.

The U.S. competes worldwide for the best and the brightest who contribute to innovation and a vibrant U.S. economy.   In Maine, hundreds of H-1B visa holders work in hospitals from York to Aroostook county, providing critically needed healthcare.  They also are employed in Maine’s universities and colleges, in our biotech and medical research facilities, in high tech and many other sectors.  In the past three years, over 100 Maine businesses have benefited from access to the global talent that the H-1B and permanent residency processes provide, benefiting Maine’s communities and economy as a whole.  

The new regulations are likely to result in many businesses nationwide choosing to offshore their employees or to locate offices in other countries such as Canada, doing more harm to the U.S. economy than good as the U.S. tries to emerge from the pandemic.

Public comments opposing the new rules will be due on November  9th (DOL rule) and December 7th (DHS rule).  MeBIC will be opposing both rules.

DV-2022 Lottery Registration Begins on October 7, 2020

Registration for the Diversity (DV) lottery for fiscal year 2022 will be open from noon (EST) on October 7, 2020 through noon (EST) on November 10, 2020.

The DV lottery allows foreign-born individuals, whether they are outside of or in the U.S., to apply for a chance to immigrate to the U.S.    A person who is selected next spring after registering this fall for the DV-2022 lottery will able to apply for permanent residency (the “green card”) at the start of FY 2022 on October 1, 2021.  S/he may be able to apply with USCIS, if s/he is already in the U.S. and is otherwise eligible, or else may apply with the State Department for an immigrant visa interview at the appropriate U.S. consulate abroad.   The person will undergo the usual medical exam and criminal and security background checks before being interviewed or approved to immigrate.

The lottery is pure luck.  But ordinarily, up to 50,000 people gain residency each year because they happened to be lucky. (In 2020, a Presidential Proclamation announced during the COVID-29 pandemic blocking entry of most immigrants, prevented over 30,000 DV-2021 lottery winners from immigrating.)

A person who is in the U.S. on a work permit, such as an asylum seeker, who entered the U.S. legally and has never violated her/his status, can register for the lottery and if selected, may be able to get her/his green card through the lottery without having to leave the U.S..   Registering for the lottery doesn’t adversely affect a person’s current status or any other applications already pending with USCIS.

Individuals in the U.S. who have been out of status should talk with an immigration lawyer before bothering to apply, since time out of status may make it impossible to get a green card, even if selected in the lottery.

Eligibility requirements for the DV-2022 lottery include:

  • Not being from one of the ineligible countries (see list in the announcement), or having a spouse or parents from one of the eligible countries;
  • Having completed high/secondary school in the U.S. or abroad (a G.E.D. is not sufficient); or
  • Having worked for at least two years of the previous five years in a skilled trade, which is one that takes at least two years to become qualified in it.

There is no minimum age requirement, although people under 18 may not qualify if they haven’t yet met the education or skills requirement.

Applicants must have a valid, unexpired passport at the time of registering for the DV lottery. As a practical matter, this may make it impossible for many people to apply, whether they are already here in the U.S. or are abroad, because they may be unable to get a passport in time, or at all.

An individual may only submit ONE lottery application.  If more than one is submitted, the person will be disqualified.  However, spouses can include each other, giving them two chances to be selected (but each spouse must meet the eligibility requirements).  All children who are unmarried and under 21 must be included on the registration application in order to be allowed to immigrate if their parent is selected in the lottery.

Employers in Maine with employees currently working with work permits, such as asylum seekers, should encourage their employees to get additional information about eligibility to register for the lottery.  While it’s a long shot, many asylum seekers have won the lottery in the past and gained residency through it while their asylum cases remained stuck in processing backlogs.

Note that lottery registration is FREE.  Instructions and the application form are posted on the State Department’s website.  Those signing up for the lottery from inside the U.S. should avoid any website that asks for a fee to register, and also avoid people who are not lawyers or authorized by the Board of Immigration Appeals to provide immigration law assistance, who ask for money to “help” with a lottery application.  Unauthorized practice of law is illegal in most states, including in Maine.

MeBIC is available to come and talk with employees at Maine businesses and nonprofits to help them understand the lottery and whether it may or may not be worth it for them to register.  Contact MeBIC for more information.

 

Budget Bill Expands “Premium Processing” of Immigration Applications

On October 1, 2020, H.R. 8337, the Continuing Appropriations Act 2021 became law, to fund U.S. governmental operations through the end of 2020.

The bill included language amending the immigration laws to allow for the expansion of “premium processing” of petitions filed with U.S. Citizenship and Immigration Services.  Premium processing has enabled employers to pay a premium over and above the regular filing fees, in order to get faster processing of immigration petitions for foreign workers.

The new premium processing law included in the budget bill will increase the premium processing fee to $2500 per petition in many cases, but caps the fee at $1500 for employers seeking speedier processing of petitions for H-2B seasonal non-agricultural employees, and for religious workers.

The law also expands the types of petitions where premium processing can be used, and opens up the door for USCIS to allow for premium processing of any type of immigration petition or application, including immediate family petitions.  Premium processing has to date been limited to employment based petitions.

USCIS has not yet announced when it will begin implementing these changes.  A more detailed explanation of the new law can be found in this analysis in Forbes

Court Blocks President’s Ban on Entry of Foreign Workers

In an important win against executive overreach and for the economy, on October 1, 2020, a federal  court blocked the administration’s latest ban on entry targeting most temporary foreign workers.  The injunction applies only to the plaintiff companies and associations, and to those associations’ members.  Those are:  U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation, TechNet, and Intrax, Inc.  While it’s not a nationwide injunction, it’s a critically important ruling that paves the way for future lawsuits against the ban.

On June 24, 2020, a Presidential Proclamation took effect banning entry into the U.S. through the end of 2020, with potential for extensions, of most temporary foreign workers, including H-1B specialized knowledge professionals (unless working in healthcare positions), L-1 employees of multinational companies, H-2B seasonal non-agricultural workers (unless working in food supply chain jobs), and J-1 cultural exchange visa holders who work in positions varying from au pairs to summer camp counselors and more.

The stated reason for the entry ban was to reduce job competition until the U.S. economy recovers from the pandemic-induced downturn.   Citing ample evidence that contrary to the Presidential Proclamation’s premise, foreign workers have a positive impact on jobs and the economy, the plaintiff companies and associations challenged the legality of the ban and asked the court to block it.

Siding with the plaintiffs, the court summarized their evidence that the entry ban

will result in the disruption of business operations, interference with existing employees, the closing of open positions, the furlough or laying off of employees, substantial pay cuts, threatened loss of prospective customers, shutting down of entire programs, inability to make capital investments, and the likelihood that some businesses or cultural programs will have to cease operations altogether.

The court found that the President exceeded his authority,  stating that

there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.

The injunction means that U.S, Citizenship and Immigration Services and the State Department must resume processing employer petitions and nonimmigrant visa applications for temporary foreign workers who would be employed by the named plaintiffs and their member businesses, while the litigation challenging the President’s ban continues.

While the case is not yet over, the ruling was an important win for the economy.

 

Administration Reduces Refugee Resettlement Cap Again

The President has announced that the administration will cap refugee resettlement for FY 2021 (October 1, 2020 to September 30, 2021) at 15,000 refugees.

This continues the fourth straight year of the administration’s stranglehold on refugee resettlement, with the prior caps set by the President at 45,000, then 30,000, and then 18,000 for the just-ended 2020 fiscal year.  But while final FY 2020 figures were not available at this writing, as of September 25th, only 10,892 individuals had actually been resettled here, the lowest number since at least 1975.   Only 40 refugees were resettled in Maine in FY2020.   In comparison, in FY 2016, the U.S. resettled 84,994 refugees, with about 650 resettled in Maine.

In the past three years, the U.S. has abdicated its moral and legal obligation under both U.S. and international law to provide safe haven to those forced to flee their homes, and has gone from being a world leader in refugee resettlement to resettling fewer than all other resettlement countries combined.

The record low refugee cap cannot be seen in a vacuum.   As this Wall Street Journal article (paywall) notes:

Mr. Trump has made restricting refugee admissions a key piece of his broader effort to reduce nearly all forms of immigration. He has said the program might allow terrorists to enter the country, though refugees face more security checks than other immigrants.

He has also said that refugees are a drain on public resources, despite the positive economic impact refugees have on the country, as well as the social contributions they make to their communities nationwide.

Given the record nearly 80 million people (or 1 of every 97 humans) who are permanently displaced and in need of resettlement worldwide, and Maine’s and the nation’s aging demographics and shrinking workforce, the administration’s decision to turn its backs on refugees represents a moral, human rights, and also an economic failure.