While there have been no legislative changes to the U.S. immigration system, there is virtually no part of it that has been unaffected by the Trump administration’s immigration policies. Some of this has been widely covered—the wall, the travel bans, the massive reduction in refugees and dramatic changes in asylum policy, the attempted end of DACA and the increased enforcement actions on individuals and businesses alike.
However, often missing from the media coverage is the effect these changes have on businesses. For example, if an asylee or former DACA recipient is no longer authorized to work, a business that was employing that person can no longer do so.
Overall, it is now taking more time and resources for businesses to hire and retain the top talent in their fields, and fewer applications are being approved. So much so that immigration advocates have termed these changes to legal immigration “The Invisible Wall.”
Businesses are looking to the new Biden administration to continue safeguarding American employees while making it possible for employers to meet their staffing needs that cannot be filled solely by U.S. workers.
Employers Feel Negative Effects
Starting in 2017, changes in processing for the most common employment-based visas, such as the H-1B visa for highly skilled workers, added red tape. The government increased scrutiny of these applications, inconsistently issuing more requests for additional evidence and more denials.
Renewal and extension applications are now treated the same as initial applications, requiring employers to duplicate past efforts and putting even long-time employees up for a routine visa renewal at risk of denial. A denial is a big setback to a U.S. employer. It is often the end of the road for a business that may not have the resources to move forward with the appeals process, and it may mean a position goes unfilled indefinitely as the employer can neither hire a qualified candidate nor continue to employ an existing employee.
The requests for additional evidence slow down the process of obtaining a visa and, in turn, the onboarding of candidates. It also costs employers more money in attorney fees and the resources it takes to gather all of the requested evidence.
These changes have often been implemented outside the usual scope of the immigration agency tasked with reviewing these applications and without any evidence that they would result in any mitigating benefits. For example, while the government increased filing fees, wait times are actually longer than before. The American Immigration Lawyers Association (AILA) has documented that the average processing time for immigration applications increased by 101% between fiscal years 2014 and 2019, while the backlog of delayed cases grew from about 544,000 to more than 2.4 million as of February 2020.
Changes, at times, have been announced suddenly, say, 3 p.m. on a Friday for implementation by Monday. Then there is the dizzying back-and-forth that has come from subsequent litigation—a court order enjoining a government action one day and then another allowing it to continue a few weeks later.
These immigration policy trends intensified with the onset of the COVID-19 pandemic in 2020. President Donald Trump’s executive orders halted the issuance of skilled worker visas at consular posts all together (with extremely limited exceptions).
New “emergency” regulations were issued, foregoing the normal procedure, which will severely limit the availability of these visas for candidates or employees already in the country.
If these new regulations overcome current legal challenges, the definition of who qualifies for the H-1B visa will be interpreted more narrowly, and the wages employers must pay will be so much higher in some job categories that it simply will not be possible for some to continue to sponsor employees in H-1B status. According to the U.S. Department of Labor, on average, across skilled worker job categories for entry-level positions, the required minimum salary increased by 39%. U.S. employers were provided with less than 36 hours of notice of these mandatory pay increases before a federal court issued an injunction.
Meanwhile, the problems that existed four years ago remain, such as the outdated green card process. This involves waiting years for a visa to become available, especially for Chinese and Indian employees where the wait may exceed a decade.
During that time, they still need to apply for their temporary visas every couple of years. And, under the current system, each application is treated as a new one, so there is no avoiding the increased risk of denial.
The business community does not agree on everything, but there is a strong sense that the current trends are not sustainable. While the U.S. economy is hurting due to COVID-19, there are still employers facing labor shortages, requiring a functional employment-based immigration system.
There is already pressure on President-elect Joe Biden to alleviate some of the challenges outlined above. AILA calls for greater efficiency and transparency in the processing of cases and a change in the current green card system of per country caps, among many other reforms.
The U.S. Chamber of Commerce, which is part of a lawsuit challenging the recent H-1B regulations, lists among its top priorities seeking “cap increases and other reforms to employment-based visa programs to provide employers with the ability to meet their workforce needs in a timely manner,” and encouraging “oversight of administrative actions that hinder the ability of employers to hire or continue employing legal immigrant workers.”
Biden included welcoming immigrants as part of his campaign platform, and he has signaled that he will follow through by selecting Alejandro Mayorkas as head of the Department of Homeland Security (DHS), the government agency that oversees immigration issues. Mayorkas brings with him years of experience, having served as deputy secretary of DHS in the Obama administration. He also has personal experience with the U.S. immigration system, starting as a Cuban refugee and eventually becoming a U.S. citizen. This signals for immigration advocates and businesses alike that a shift in immigration policy is coming. The biggest questions for U.S. employers are: what does this mean for employment-based visas and what are the chances of a Biden administration actually being able to implement changes?
If the Biden administration faces a divided Congress, it is not likely to attempt ushering in sweeping, legislative immigration reform. On the other hand, it will make regulatory changes, which would take time to go into effect, and changes in the administration of existing laws, which could go into effect more quickly, as the Trump and Obama administrations did. So something like increasing efficiency in the processing of cases is doable within the executive branch, whereas reforming the green card system would take legislative action and cooperation with Congress. It is also expected that any Trump-era policies that are tied up in litigation, like the recent H-1B changes, would no longer be pursued or be settled in a way more favorable to the plaintiffs.
Estella Rendall is a bi-lingual second-generation American attorney at GoffWilson, P.A., an immigration law firm in
Manchester. For more information, contact ERendall@goffwilson.com.