What’s Next for H1-B and All Work Visas Under Trump?
Disclaimer: The information included in this article is not meant as a substitute for obtaining legal advice from a qualified attorney on behalf of your individual circumstances.
Ever since Donald Trump was inaugurated as the President of the United States of America on January 20, 2017, the rights of immigrants and foreign-born individuals have been called into question — and any insight into what could happen next is hazy at best.
Top of mind is Trump’s now-stayed executive order preventing the entrance immigrants and refugees from seven different countries into the United States. This immediately controversial ban resulted in the revocation of a reported 60,000 visas and provoked an outpouring of protests worldwide. The ban has since been temporarily halted by an order from U.S. District Judge James Robart, and travel from the seven named countries has resumed, but the threat of coming additional restrictions on immigration remains.
One major recent development is the release of a series of “guidance documents” from the Department of Homeland Security (as reported by The New York Times). The policies described in these DHS documents, reports the Times, reflects “a major shift in the way the agency enforces the nation’s immigration laws.” For example, under the Obama administration, immigration officials were directed to focus deportation efforts on individuals convicted of serious crimes in their home countries. “Now,” reports The New York Times, “immigration agents, customs officers and border patrol agents have been directed to remove anyone convicted of any criminal offense.”
In an attempt to learn what recourses and resources are available to those affected by new policies or decisions made by the Trump administration, we spoke with immigration attorney David Brown. Brown helped fill in the details surrounding what individuals can and should expect, as well as what to do if you’re currently in the U.S. on a work visa or are trying to obtain one.
Brown himself has a lot of experience with the immigration system in the U.S., as the Toronto-born attorney came to the country in 2002 and went through the process of getting a TN status, then got a green card and became a citizen of the country — all prompted after meeting his now-wife while she was getting her PhD at Stanford.
Most Common Kinds of Work Visas
There are several different designations Brown advises on, each one for a different purpose. Here’s a quick overview of the most common types:
The TN visa is a temporary status for Canadian and Mexican nationals who come to the country for professional pursuits.
The J-1 visa is issued by the Department of State and available for foreign professionals to come to the United States for a period of six, 12, or 18 months, and is often used for sponsored training in the country.
The F1 visa is for studying within a set amount of time, though an additional 24 months of work authorization can be issued if the student graduates from a STEM program.
The H1-B visa is the designation most discussed in the media, and is for specialized workers and must be sponsored by an employer. The number of H1-B visas issued is a hot topic, and currently a lottery exists wherein everyone who wants to apply for one puts their name in, and all but a third are rejected.
H1-B Visas: What’s Next
When asked about the H1-B during a Republican debate, Trump said, “We shouldn’t have it, it’s very, very bad for workers. It’s unfair to our workers and we should end it.” What might that look like, in terms of actual policy? Trump hasn’t said. However, his campaign page still lists the immigration policy he originally outlined on the campaign trail (below):
- Establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.
- Protect the economic well-being of the lawful immigrants already living here by curbing uncontrolled foreign worker admissions
- Select immigrants based on their likelihood of success in the U.S. and their ability to be financially self-sufficient.
- Vet applicants to ensure they support America’s values, institutions and people, and temporarily suspend immigration from regions that export terrorism and where safe vetting cannot presently be ensured.
- Enforce the immigration laws of the United States and restore the Constitutional rule of law upon which America’s prosperity and security depend.
- Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
The first of Trump’s outlined “goals” means that rather than allowing employers to allow skilled workers from other countries to enter on a sponsored visa and perform work in a specialized area, the employer would have to leave open the job for an American worker first.
Brown explains this further: “In a normal H-1B transfer situation, if we got the case on a Friday, we could file by next Monday, he could start the next Tuesday. But if the worker needs an approval notice before he could start, he would have to wait, but could start within a month.” At the point that the application is filed, an employer can either get the person working right away based on the fact that it’s been filed, or could wait for the approval.
However, as happened in Canada with the LMIA — Labor Market Impact Assessment — the government created a barrier in which the labor market had to be “tested” and the hiring employer had to prove the unavailability of Canadian workers fit for the job. With such a long process, perhaps needing to leave the job up for 30 days or much longer, employers thought “I’m not going to spend all that money and time to go through the steps and still get shot down,” Brown explains. “Employers would make due with fewer employees or else end up with jobs sitting open for months and months,” he says.
Prime Minister Justin Trudeau has since “liberalized requirements” — and Brown expects this will increase employer likelihood for hiring skilled workers in the near future. If a similarly stringent requirement for additional advertising comes into play in the U.S., the process could go from taking an H1-B visa earner 2-4 weeks to start, into one that would involve 12-16 weeks waiting time.
How to Transfer Your H1-B Visa
So, what if you’re already in the country on an H1-B but you need to change companies? The good news, Brown says, is that if you’re already here on an H- visa, you’ve counted against the quota allowed, so you can transfer to any other employer. “Assuming, that is, that you’re still a software engineer, not changing paths and deciding to branch out into something that doesn’t qualify under that visa,” he explains. “It’s a specialty occupation visa. You have to be doing something that uses whatever you learned in university.”
TN Visas: What’s Next
In terms of the TN status for Canadians and Mexicans, the agreement is based on the USA’s participation within NAFTA — the North American Free Trade Agreement — Brown explains. Why is that a problem? Well, on his “America First Foreign Policy” page, it says “President Trump is committed to renegotiating NAFTA. If our partners refuse a renegotiation that gives American workers a fair deal, then the President will give notice of the United States’ intent to withdraw from NAFTA.” And Trump is currently trying to “speed up” calls to renegotiate NAFTA and has called it a “catastrophe.”
If the U.S. does leave NAFTA, Brown estimates over a quarter-million people currently in the country on a TN status will be left in the lurch.
What Companies Can Do
Brown’s firm tells their clients to “plan ahead” as they expect new ways of vetting applicants will only further complicate the process. “They could easily shut this whole thing down if they decide a certain level of clearance or compliance is needed,” he adds.
If you’re an employer, there are no official changes yet, though the visa restrictions are a concern. And employers who have employees that are from the seven countries listed in the “Muslim ban” are likely dealing with the ramifications. “As we understand it right now, folks are being prevented from getting on planes to the U.S.,” Brown says. “That’s their nice PR way to do it, and that’s what’s going on worldwide right now.”
He advises that people pay close attention to what’s going on and make arrangements. “Anyone who has questions can talk to us and we have attorneys on call so you can reach us,” he says (clients can email email@example.com). “They can let us know when they’re coming into the country so we know that they’re getting in safely.
Many companies, he says, are telling their employees not to travel. “It’s changing the dynamic of how people are doing business right now, ” Brown opines, lamenting, “it’s making us look stupid around the world.” Other companies are carving out new resources for employees in the event they are affected. One company Brown Immigration Law works with created a network for their 13,000 employees, providing all of them the ability to contact the law firm to ask any questions about their status, their family’s status, and get advice on what to do next.
If your employer hasn’t done something similar (and even if they have), Brown recommends looking into two resources: the ACLU and the Association of Immigration Lawyers. “There are over 15,000 of us who are members,” Brown says of the AILA, ”and they’re trying to be completely in the loop of what’s going on to advise lawyers and people traveling.”