HR's Immigration Concerns
As the Trump administration attempts to fulfill campaign promises on immigration, employment-law experts say employers need to explore other ways to getting the talent they need.
By Tom Starner
Two recent immigration-related developments coming from the federal government were in position to make life more difficult for some U.S. employers during 2017, but with another federal judge striking down President Trump's "Travel Ban 2.0," that leaves only one -- the six-month suspension of the H-1B visa premium processing option -- to fret over for now.
Last week, two federal judges blocked a Trump administration executive order banning travel from six specific countries (Iraq was dropped from the original EO list).
The new travel ban replaced the one struck down earlier by the U.S. Ninth Circuit Court of Appeals. The now-blocked EO is a streamlined proposal that basically removes Iraq from the list of banned countries, exempts visa and green-card holders and allows excluded foreigners to apply for waivers to enter the U.S. The EO applies to citizens of Iran, Sudan, Somalia, Libya, Yemen and Syria. Whether the Trump administration decides to fight the legal setbacks all the way to the Supreme Court of the United States remains to be seen.
Regarding the H-1B change, until now, employers had been able to pay a special fee to have their applications "fast-tracked," getting a decision within 15 days. With the H-1B program, U.S employers can apply via lottery for 85,000 total visas (its current cap). But starting on April 3, the premium processing program will be suspended, according to United States Citizenship and Immigration Services.
Angelo Paparelli, a Los Angeles-based partner in the Business Immigration Practice Group of Seyfarth Shaw, says that, while the blocked travel ban did eliminate hassles for some classes of people such as visa holders and green card holders, the other side of the coin is the likelihood that there will be more countries added to the list.
"Right now, the government is pretty much in the same soup as they were with the first executive order," Paparelli says. With the regard to H-1B, the fact that premium processing has been discontinued for a six-month period is a "perfect illustration of how oblivious USCIS is to the pressures on employers to comply with their rules," he says.
"There was no early forecasting it would happen or be so long," he adds. "Employers using that part of the H-1B program prepared forms, cut checks and made plans based upon this benefit being available. And all those plans are thrown aside when the government revokes a plan that existed."
It would have made much more sense, Paparelli says, if premium processing had been revoked or suspended back in January rather than in March, so close to the April 3 deadline.
"This is tough on companies reliant on tech and engineering services," he says. "There is a great deal of thought given to identify and then decide when they want to come on board, and even if they can be employable."
His advice is that employers need to look at all the visa categories, including the L1, which would allow someone to come back to the U.S. after a one-year stint abroad in an affiliate company.
"It may make better sense to have someone go abroad, gain the experience level required and then apply for the L1, since it's not subject to a quota," he says.
Apart from the obvious negative impact on the tech sector, the healthcare industry is especially affected by the travel ban and the H-1B suspension.
According to Miami-based Jorge Lopez, global mobility and immigration chair and shareholder at Littler Mendelson, thousands of doctors from abroad need to move to H-1B visas as they look to complete their residency programs in the U.S. because they went to medical school using J-1 visas.
The American Association of Medical Colleges, in fact, reports that more than 6,000 students from outside the U.S. enroll in medical residency programs through J-1 visas. Once residency is completed, the new doctors have the option to return to their home country for two years before becoming eligible to reenter the U.S. through a different immigration pathway, such as an H-1B visa. Or they can apply for a J-1 visa waiver (waives the two-year home residency requirement, allowing a doctor to stay in the U.S. to practice in a federally designated Health Professional Shortage Area or Medically Underserved Area).
The main concern is, what's going to happen with these doctors who have now been matched and are set to start X program at X university hospital? They can't start working until the visa is approved, but that approval might not come until eight months down the road.
"You can't all of a sudden find somebody else," Lopez says. "That's a practical issue. It's going to have an impact on employers because of the backlogs and slower processing, for example. A regular processed H-1B visa can take eight to nine months to be adjudicated, without the premium processing option."
As for the new travel ban EO, should it ever take effect, Lopez says there are many nationals from those countries that are subject to visa requirements who are working in the U.S. and who may have been here for years.
"To get a visa, you already were vetted -- especially when you go through the State Department processing at a consulate," he says.
Roxanne Levine, a partner at Tarter Krinsky & Drogin in New York, is concerned that the premium processing suspension is just the first of several ways in which the Trump administration is looking to "chill" use of the often controversial H-1B program, which is attacked by lawmakers from both sides of the aisle as being unfair to smaller employers. However, employers dispute that H-1B workers are displacing U.S. workers. They say they just can't find enough talent for all of their highly technical open positions.
"Because there is concern about whether the H-1B program will be limited in a radical way by the new administration, I think there may be a lot more submissions this year than in past years," says Levine, who notes that the bulk of the 85,000 H1-B visas issued annually are not obtained via premium processing.
She says those in the immigration world are sort of looking behind the curtain, as in the movie The Wizard of Oz, to find out what's truly going on. For one thing, Attorney General Jeff Sessions is no fan of the H-1B program.
"Is there really an underlying hidden agenda? I don't know that there is," she says. "But the government said they're doing this because there are long-pending cases that need to be resolved. If that happens to be true, they're not suspending premium processing for other visa categories, other than H-1B. So, why did they choose this category?"
If those jobs could be filled by Americans, Levine wonders, why are U.S. companies wasting their time, effort and money on bringing in these foreign nationals? She says it's because, according to her clients' experience, they could not find enough qualified applicants domestically.
"Frankly, these companies don't really want to bring in foreign nationals. It's not their first choice, but in many cases it's their only real choice," she says.
Seyfarth's Paparelli has some bold advice for employers that are affected by immigration roadblocks being set by the current administration -- get out in front of it. For example, employers such as Google, Lyft, Dropbox, Slack, Salesforce and others spoke out on the original travel ban.
"What I think employers and HR need to do is grow a spine and speak out," he says. "For instance, it was heartening to see individual companies stand up against the initial travel ban. That's so much stronger than a trade group speaking out, or using lawyers to get the message across. I realize people are afraid. They don't want to be seen challenging the federal government."