As he closes out his term, President Donald Trump has extended his ban on “entry of immigrants who present a risk to the United States labor market,” including those who rely on the H-1B visa. However, will the extension have any impact, given how President-elect Biden is due to take the oath of office on January 20?
The new proclamation states that the ban’s extension is due to the continuing COVID-19 pandemic and the U.S. unemployment rate. “The 2019 Novel Coronavirus (COVID-19) continues to significantly disrupt Americans’ livelihoods,” it reads. “While the November overall unemployment rate in the United States of 6.7 percent reflects a marked decline from its April high, there were still 9,834,000 fewer seasonally adjusted nonfarm jobs in November than in February of 2020.”
As pointed out by NFAP executive director Stuart Anderson in Forbes, however, the unemployment rate among computer and mathematical occupations is far lower, sitting at roughly 2.4 percent in November 2020 (the article pulled its data from the Bureau of Labor Statistics).
The extension is set to expire on March 31, 2021, which is more than two months after Trump is scheduled to leave office. The incoming Biden administration has its own plans for immigration, with rumors that it will reverse at least some of Trump’s H-1B policies, but the specifics remain to be seen. Chances seem good, however, that Biden will rescind Trump’s ban extension.
When the Trump administration first issued its temporary ban on the H-1B and other visas in mid-2020, it ignited a substantial amount of pushback from the big tech firms (such as Google and Apple) that heavily rely on the visa. In October, a federal judge banned the ban, stating that the President had exceeded the authority given to him by Congress when he issued the initial proclamation.
“Indeed, 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,” stated United States District Judge Jeffrey S. White’s ruling in National Association of Manufacturers, et al. v. U.S. Department of Homeland Security. “Such unrestricted authority would be contrary to Congress’ explicit delegation of powers in foreign affairs and national security.”
In its final months, the Trump administration also launched the sweeping reform of the H-1B system that it had promised for years. The centerpiece of that shift was a Department of Labor (DOL) Interim Final Rule designed to reform the H-1B system from the ground up, specifically around minimum wage reforms and stricter visa reviews. Many of these changes (particularly the wage-related ones) could have a huge impact on business-services and consulting firms that traditionally apply for lots of H-1B workers that they subsequently contract out to other companies. It remains to be seen, of course, whether the Biden administration will keep some (or any) of those proposed changes.