Administration’s Regulatory Agenda Shows More Anti-Immigrant Restriction is Coming
The nativists and xenophobes in the Trump Administration have continued to push their fiercely anti-immigrant agenda. The Administration has burned a destructive path over traditional precepts of due process, demolished the asylum process, and acted as an agent for restrictionist groups that seek to cut-off immigration from the developing world. Advocates who value America’s heritage as a safe haven for the downtrodden have sought help in the federal courts which – so far – has kept some of the worst features of the Administration’s strategy in check.
However, the release of the Administration’s Regulatory Agenda for the coming year reveals that the restrictions are continuing to push hard for reversal of long-established policies and implementation of new provisions which will reduce the availability of visas and limit legal immigration. Unless stopped by the Courts or legislation, these provisions will be rolled out for Notice and Comment in the coming months.
Some of the regulatory changes aimed at high-skilled, in-demand employer-sponsor immigrants include:
- imposing a restricted definition of “U.S. employer” aimed at companies that employ H-1B workers and assign them to projects at third-party work sites. This regulatory change aims at ending the common practice – regularly used by U.S. government agencies – of relying on third-party contractors to provide U.S. companies with specialized expertise.
- eliminating employment authorization for the spouses of H-1B workers. At present, if an H-1B worker has been sponsored for permanent residence but is unable to complete the green card due to the unavailability of Immigrant Visa numbers, his/her spouse may ask for employment authorization. In light of extreme wait-times for Immigrant Visa numbers for citizens of India and China, granting work permission to H-4 spouses is both fair and provides families with another income source while they wait to complete the green card process. If implemented, the regulation would take away employment authorization for H-4 spouses, causing harm to those families and creating another reason for high-tech workers to seek opportunities elsewhere.
- ignoring express provisions of the Immigration and Nationality Act to prevent intra-corporate transferees in L-1 status from being assigned to third-party work sites, imposing onerous prevailing wage requirements on L-1’s and further narrowing the definition of “specialized knowledge”, so as to make L-1B status effectively unattainable.
- targeting international students by restricting the availability of post-graduate experiential learning. At present, international students are permitted to participate in “curricular practical training” and “optional practical training” in their field of study. These opportunities for experiential learning are an important and valuable adjunct for international students who choose U.S. colleges and universities. Under the Trump Administration, enrollment of international students has decreased by 10%, mostly due to the belief that America has become a less welcoming destination and offers less valuable opportunities than other countries. The implementation of these additional restrictions will undoubtedly continue to drive this downward trend as international students in high-demand majors will choose to pursue their education in countries with a more welcoming atmosphere.
- taking aim at exchange visitors subject to the two-year foreign residence requirement. At present, exchange visitors who hold or have held J-1 status are sometimes subject to a requirement that they return to their home countries for two years before they can accept offers from U.S. employers. In many cases, the J-1 visa holders can be excused from the two-year restriction if the home country indicates that it has “no objection” to lifting the restriction. Until now, if the home country issues a “no objection” letter, the U.S. Department of Status would recommend a waiver of the two-year requirement. Under the proposed regulations, an increased percentage of “no objection” waivers will be refused, and this will prevent U.S. employers from hiring qualified workers to support U.S. operations.
The Administration’s regulatory agenda provides the public with a foreshadowing of further restrictions, obstacles and challenges aimed at legal immigration. In these times of economic growth and record low unemployment, it is difficult to see how these restrictions serve American business interests. To the contrary, as news of the Administration’s regulatory agenda reaches international markets and students, the U.S. can expect to see negative impact on business and educational institutions in the face of this Administration’s overt hostility to accretive immigration.