Donald Trump has not wasted much time in trying to turn his campaign promises of immigration reform, both legal and illegal, into policy. Changes to the "legal" immigration side have the potential of making a big impact on employers.
In April, Trump unveiled his "Buy American, Hire American" initiative and directed federal agencies to undertake a review of the popular H-1B visa program to suggest changes. Earlier this month, the President met with Sen. Tom Cotton, R-Ark., to announce the reintroduction of legislation designed to cut by half the number of green cards given to foreign nationals seeking to immigrate legally to the U.S.
This is an Opinion
It is important to keep in mind that, at this time, there have not been any significant changes to immigration law itself. The "Buy American, Hire American" policy is an executive order directed at federal agencies that enforce existing immigration laws, but it does not actually change the legal underpinnings of the H-1B visa.
Any changes to the law, such as reducing the number of available visas, must first pass through Congress. The legislation proposed by Cotton also has not passed the Senate or the House. At this time, it's unclear whether either of these proposals has sufficient support to become law.
When Trump signed the "Buy American, Hire American" executive order, he claimed it would "aggressively promote and use American-made goods and … ensure that American labor is hired to do the job." Officials in the Trump administration released contemporaneous statements claiming that American manufacturers and workers had been disadvantaged by lax enforcement of immigration laws and companies that abuse the H-1B program. So Trump ordered the federal agencies in charge of administering the H-1B program to propose changes.
The H-1B visa is reserved for individuals in "specialty occupations" (think STEM fields that require a college degree) and most are capped at a total of 85,000 each year. However, the U.S. Citizenship and Immigration Services typically receives around 200,000 petitions during a one-week period each year, stops accepting petitions, and then conducts a random lottery to select applicants. This means that the majority of employers trying to get an H-1B visa for an employee fail.
Stakeholders on all sides have criticized the H-1B program, complaining that it awards visas on pure chance and favors large companies that submit numerous petitions each year. Reform to the H-1B program has been primed for years, but it is unclear what changes could actually get the bipartisan support necessary to become law.
Various congressional members have proposed different bills to change the H-1B program and a common theme is a merit-based system and preference for foreign nationals who obtain an undergraduate degree in the U.S. Given the recent proposal by Cotton that also attempts to create a skills-based system for green cards, a merit-based H-1B program may have a shot at becoming law.
The fear of many employers who need H-1B workers is that the Trump administration will try to implement more protectionist policies and reduce the overall number of available visas. This could make it even more difficult for some companies to find qualified employees. But, at this time, it does not look like a reduction in H-1B visas will happen in the near future. It's expected that there will be the same number of visas available for the next lottery in 2018.
The legislation proposed by Cotton, known as the RAISE Act (Reforming American Immigration for a Strong Economy), is an attempt to reduce the number of legal immigrants to the U.S. from its current figure of around 1 million each year to 500,000 a year.
The bill seeks to achieve this in several ways:
- limiting the number of foreign nationals seeking to reunite with family members already living in the U.S.;
- capping the total number of refugees admitted to the U.S. each year;
- and eliminating the diversity visa lottery altogether, which currently grants 50,000 visas each year.
Moreover, it would replace the current employment-based visa system with a new "skills-based point system." A news release from Cotton explained that applicants would "earn points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative."
Trump proclaimed that switching to a skills-based system would "restore our competitive edge," but many in the tech community are skeptical because it does not increase the number of high-skilled visas the industry needs and has been calling for. Their fear is that those who fail to make the cut instead go to Canada or Australia, which have been enacting policies to attract and increase the number of high-skilled foreign workers admitted there.
As mentioned above, however, it is unclear whether this proposal will actually go from a bill to a law. As of now, it does not seem to be gaining much support and has not attracted any additional co-sponsors. Sen. Lindsay Graham, R-S.C., has said that the bill would be "devastating" to the economy of his state. Nonetheless, the legislation could be revised to the point that it receives enough support to pass.
If anything, it is an indication of the direction immigration policy will move if the Trump administration can figure out how to push significant legislation through Congress, a possibility that at one time seemed inevitable given his party's majority in both chambers. But for now, employers are still in a wait-and-see mode.
Neemah A. Esmaeilpour is an attorney at Wright Lindsey Jennings in Little Rock. His labor and employment practice includes a focus on employment-based immigration with an emphasis on petitions for foreign-born physicians, academics and researchers. Email him at NEsmaeilpour@WLJ.com.