President Trump has temporarily suspended new work visas, including the H-1B. The suspension, which will last throughout the rest of 2020, did not come as a surprise to those watching the administration. However, tech firms that depend on the H-1B to source talent may find themselves scrambling for an alternative solution.
The order is a sweeping one, and also curtails companies' abilities to bring in executives in addition to highly technical workers. In his executive order, Trump cited the COVID-19 pandemic as a key reason behind the move.
"Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy," he wrote. "But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers."
He added: "Assuming the conclusion of the economic contraction, the United States economy will likely require several months to return to pre-contraction economic output, and additional months to restore stable labor demand. In light of the above, I have determined that the entry, through December 31, 2020, of certain aliens as immigrants and nonimmigrants would be detrimental to the interests of the United States."
Predictably, advocates of the H-1B system were dismayed by the move. “This is a full-frontal attack on American innovation and our nation’s ability to benefit from attracting talent from around the world,” Todd Schulte, the president of pro-immigration nonprofit FWD.us, told The New York Times.
Whether the ban will extend past the end of the year will almost certainly hinge on the outcome of the 2020 election.
Beyond the Ban: Dipping Denials
Once the ban is lifted, of course, will things return to "business as usual"? Over the course of the Trump administration, the rate of denials for H-1B petitions has steadily crept up. Now, some tweaks to legislation could put that high denial rate at risk.
First, some backstory on this aspect of things. U.S. Citizenship and Immigration Services (USCIS) has denied an increasing number of H-1B visa applications over the past few years. That includes petitions for initial employment…
As well as petitions for continuing employment (hat tip to the National Foundation for American Policy (NFAP) for doing some of the hard analytics behind this):
However, after a somewhat high-profile legal battle with the ITServe Alliance, USCIS has issued a new policy memo and rescinded two others. The new memo, dated June 17, adjusts petitioners’ requests for evidence, including proof that a particular job exists at the time of filing. Nor do employers necessarily need to provide evidence of specific day-to-day assignments.
“If the petitioner’s attestations and supporting documentation meet this standard [of establishing that employment exists], then the officer should not request additional evidence and should approve the petition, provided all other eligibility requirements are met by a preponderance of the evidence,” the memo states at one point.
According to a Forbes article by Stuart Anderson, executive director of the National Foundation for American Policy, one of the rescinded memos (the “Neufeld” memo) removes a restrictive test to determine proper employer-employee relationships. The article also provides a handy breakdown of how these three memos, by their inclusion and absence, might fundamentally change the amount of evidence that companies actually need to successfully petition for H-1B visas.
The total impact of all this: The rate of H-1B denials may gradually go down once the White House eases its suspension. Other scuttlebutt suggests that the White House could attempt to restrict the long-term prospects of the H-1B program in other ways, such as raising the minimum required wage to $250,000. Those steps, however, may be met with significant legal challenges.
Editor's Note: An earlier version of this story accidentally substituted "2021" for "2020."
