2021 Might Be A Decisive Year For H-1B Visas

Significant, given possible effects on relative attractiveness of Canada to potential immigrants:

The Trump administration was hostile to high-skilled immigration, but the Biden administration may enact the most enduring policy changes to H-1B visas. And the changes might not be positive for employers. A series of decisions loom on regulations that would affect who can receive H-1B petitions, how much employers must pay H-1B professionals and much more.

The Big Picture: “H-1B visas are important because they generally represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United Statesand have the chance to become employment-based immigrants and U.S. citizens,” as discussed in a recent Forbes article. “In short, without H-1B visas, nearly everyone from the founders of billion-dollar companies to the people responsible for the vaccines and medical care saving American lives would never have been in the United States.”

The number of H-1B visas is small for a country the size of the United States. The 85,000 annual H-1B limit—the 65,000 regular cap and the 20,000-exemption for H-1B visa holders with a master’s degree or higher from a U.S. university—comes to 0.05% of the U.S. labor force. Companies are allowed to file for only 85,000 new H-1B petitions in a year, and about two-thirds, or 56,000 a year, are in computer occupations. 

The U.S. job market is strong for individuals who work in computer occupations. The unemployment rate in math and computer occupationswas 2.5% in April 2021, below the 3%, lower than in January 2020 before the pandemic began. 

Today, there are well over 1 million active job vacancy postings in computer occupations, according to a National Foundation for American Policy (NFAP) analysis of Emsi Job Posting Analytics. “There is not a fixed number of jobs, and people with high skills often create more jobs for people with complementary skills,” notes the NFAP analysis. “Still, even if one adopts a zero-sum approach, there are nearly 20 times more job vacancy postings in computer occupations than new H-1B petitions typically used by companies in computer occupations each year. There are also likely many more openings than publicly posted positions.”MORE FOR YOUFederal Judge Hears Arguments Against Trump’s H-1B Visa BanH-1B Visa Denials Continue To Mount For CompaniesCourt Hearing Shows Businesses Could Prevail Against H-1B Visa Rules

With regional Covid-19 bans still in place and many U.S. consulates either not operating or working in a limited capacity, visa backlogs, including for H-1B and L-1 visa, will continue to mount until the State Department commits to new policies. Jeffrey Gorsky, former Chief of the Legal Advisory Opinion section of the Visa Office in the U.S. Department of State, believes the State Department could become more creative with biometric intake, give visa processing a higher priority and conduct more interviews via video. He believes interviews via Zoom would meet the statutory definition of in-person interviews.

Due to Trump administration policies that U.S. courts found unlawful, H-1B denial rates reached 24% for initial employment and 12% for continuing employment in FY 2018 (compared to 6% and 3% in FY 2015). After USCIS agreed to a settlement with the ITServe Alliance that overturned years of restrictive policies, H-1B denial rates returned to pre-Trump levels (after costing companies millions of dollars). The Biden administration may remove some restrictions on H-1B visa holders that prevent them from starting businesses, according to the New York Times.

Still, the H-1B annual limit is low. Employers filed 308,000 H-1B registrations for cap selection for FY 2022, according to USCIS. That means over 72% of H-1B registrations for high-skilled foreign nationals were rejected even before an adjudicator evaluated the application.

The economic literature shows loosening restrictions on H-1B visas would benefit the U.S economy and American workers. A study by economists Giovanni Peri, Kevin Shih, Chad Sparber and Angie Marek Zeitlin found, “The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55% faster between 2005-2006 and 2009-2010, if not for the denial of so many applications in the recent H-1B visa lotteries.”

Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found in her research that H-1B restrictions push technology-related jobs out of the United States: “[A]ny policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.”

Some policymakers argue America needs even more restrictive laws and rules to block the hiring of foreign-born scientists and engineers. As discussed below, the Biden administration will soon decide on a series of restrictions that could produce significant changes in H-1B visa policy.

Rule Would Make it Less Likely International Students Will Get H-1B Petitions: Before Donald Trump left office, his administration finalized a regulation that would end the H-1B lottery and replace it with a system that awards H-1B petitions by highest to lowest salary level. Many attorneys consider the regulation to be unlawful, and there are pending lawsuits against the rule. Instead of taking steps to rescind the rule, the Biden administration only delayed the regulation until next year’s H-1B cap selection.

In addition to questions of legality, the rule finalized by the Trump administration would fulfill a long-standing goal of Trump White House adviser Stephen Miller and his allies to make it more difficult for international students to obtain an H-1B petition, which would discourage many students from coming to America in the first place.

International students are disadvantaged under the rule because choosing H-1B petitions by salary level favors individuals with the most experience in the labor market over those with the least experience. “The National Foundation for American Policy found that an international student may be 54% more likely to get an H-1B petition under the current H-1B lottery system than under the Trump administration’s regulation that would end the H-1B lottery,” according to an NFAP analysis of actual cases of recent international students and filings for H-1B petitions. “The data demonstrate the new regulation would have a significant negative effect on the ability of international students to gain an H-1B petition.”

“The law firm Curran, Berger & Kludt provided NFAP with 170 cases of F-1 students with applications for H-1B cap selection for FY 2018, FY 2019, FY 2020 and FY 2021,” according to NFAP. “Under the current system that randomly selects H-1B petitions, 60% of the F-1 students were chosen through the H-1B lottery. However, the law firm provided information on the pay levels (Level 1 through 4) for the students’ H-1B applications, and NFAP found if the new regulation had been in effect, only 39% of the students’ H-1B petitions would have been selected.” Education organizations had warned the Trump administration’s rule would harm international students and make studying in America less attractive.

Rule to Force Employers to Pay H-1B Visa Holders and Employment-Based Green Card Applicants Well Above Market Wages: Under a Department of Labor (DOL) rule, published in the final days of the Trump administration, “employers must pay 23% to 41% higher salaries than under the current system across a range of occupations if they want to employ high-skilled foreign nationals in America,” according to a National Foundation for American Policy (NFAP) analysis. https://embedly.forbes.com/widgets/media.html?src=https%3A%2F%2Fdatawrapper.dwcdn.net%2FUsMsI%2F1%2F&display_name=Datawrapper&url=https%3A%2F%2Fdatawrapper.dwcdn.net%2FUsMsI%2F1%2F&key=3ce26dc7e3454db5820ba084d28b4935&type=text%2Fhtml&schema=dwcdn

The rule would apply to H-1B visa holders and employment-based immigrants and could have a devastating impact on both. H-1B visa holders waiting in the green cards backlog might be forced to leave the country if an employer could not extend their H-1B status at the new, much higher required salary level.

There is no evidence H-1B visa holders and employment-based immigrants as a group are underpaid relative to native-born professionals. Numerous economic studies have found high-skilled foreign nationals, on balance, earn more than their native-born counterparts. For example, Andrew Chamberlain, the chief economist at Glassdoor, found, “Across the 10 cities and roughly 100 jobs we examined, salaries for foreign H-1B workers are about 2.8% higher than comparable U.S. salaries on Glassdoor.” A recent study by Utah State University economist Omid Bagheri finds a larger wage premium for high-skilled foreign nationals.

The Biden administration published a notice of an agency action to delay the DOL rule until November 14, 2022. At the same time, the administration requested information from the public on data sources for calculating the prevailing wage.

Three courts blocked the rule when it was published as “interim final” in October 2020. On January 14, 2021, the Trump administration published a final rule that was only slightly modified from the original and carried the same aim—to price H-1B visa holders and employment-based immigrants out of the U.S. labor market. “The revisions to the rule don’t change the fact that it still fails to do what the law requires—to reflect the actual, prevailing wage for workers in that geographical area doing similar work,” said Kevin Miner, a partner at Fragomen. 

The U.S. Chamber of Commerce and allied business groups and education organizations filed an amended complaint that argues the regulation to end the H-1B lottery is unlawful and continued its lawsuit to end the Department of Labor wage regulation.

New Regulation on Work at Third-Party Sites: “USCIS is still aiming to have a regulation in place by FY23 cap season to restrict use of the H-1B category by outsourcing companies by changing the ‘employer-employee relationship’ definition,” according to Berry Appleman & Leiden. Peter Bendor-Samuel, founder and CEO of Everest Group, argues access to talent is key for competitiveness as information technology services companies attempt to build digital platforms for U.S. companies. “Almost every major U.S. firm is building some form of digital platform so it can enhance its competitive position both domestically and internationally,” he said. “This is probably the most important thing these firms are doing and success will define both company and global success as we move into the future.”

The mistaken premise of nearly all restrictions on high-skilled immigration is that foreign-born scientists and engineers offer no value to America or U.S. companies except for a willingness to work for less money. Some policymakers believe that people born in other countries possess inferior abilities to people born in the United States—hence the belief companies must pay them lower salaries—and incorrectly assume that only a fixed number of jobs exist in the U.S. economy. The Biden administration has an opportunity to adopt a more forward-looking policy.

Source: https://www.forbes.com/sites/stuartanderson/2021/06/02/2021-might-be-a-decisive-year-for-h-1b-visas/?utm_source=newsletter&utm_medium=email&utm_campaign=follow&cdlcid=5e4bc7f55b099ce02faa6b40&utm_source=newsletter&utm_medium=email&utm_campaign=follow&cdlcid=5e4bc7f55b099ce02faa6b40&sh=7932dc0018df

H-1B visa: American Silicon Valley veteran employs foreign workers in Canada for U.S. firms

Canadian competitive advantage:

When a client of Marc Pavlopoulos’ tech-recruiting company asked for help placing an engineer outside the U.S. four years ago, Pavlopoulos thought of a possible solution: Canada. It might be a long shot since he knew from his time getting an MBA and working there that immigration officials were wary of foreign citizens taking jobs from Canadians. It turned out things had changed up north.

Eager to build up its technology industry, Canada had just launched a pilot project to provide Canadian companies with fast, reliable access to skilled foreign workers by making visas quick and easy to obtain. “Sure enough, we got the person in,” recalled Pavlopoulos, who spent years in Silicon Valley watching companies and foreign workers struggle with U.S. immigration and work permit systems.

But it wasn’t until he responded to another request for help from a frustrated Bay Area startup founder, and ended up talking to a Canadian immigration officer who encouraged him to use the new “Global Talent Stream” program to bring in “a bigger volume” of tech workers, that Pavlopoulos realized he might be onto a budding new business: employing tech workers for U.S. companies in Canada.

His outsourcing startup, Syndesus, makes an end-run around a big problem plaguing U.S. businesses seeking top tech talent. Foreign workers are often out of reach because the H-1B visa, allocated by lottery and intended for jobs requiring specialized skills, is hard to get and the path to a green card and citizenship is long and uncertain. Syndesus, a small but growing part of Pavlopoulos’ tech-talent business, helps American companies obtain workers who can’t get a visa in the U.S.

“Same laptop, same job, but they’re sitting in Vancouver,” he said.

Pavlopoulos has found opportunity amid a confluence of thorny issues in a global tech market: competition for skilled workers, a shortage of American workers with specialized skills, high labor costs in Silicon Valley and other U.S. hubs, and underlying it all, dramatic differences between the American and Canadian processes for bringing in foreign workers. In Canada, permanent residency — the equivalent of a green card — usually comes after a year or two, and citizenship typically follows in three to four-and-a-half years, Pavlopoulos said. In the U.S., the average wait for a green card is nearly six years, according to a Cato Institute report, with another five years before citizenship is possible. Many foreign workers wait much longer.

At the root of the problem for U.S. employers is that their demand outstrips the supply of new H-1B visas allocated each year. Around 200,000 applications from employers typically pour in each year for 85,000 visas. When an employer’s candidate — or a worker already employed on an expiring student visa — has not won the H-1B lottery, firms like Pavlopoulos’ step in. They remotely employ the workers, pay them and provide benefits and legal compliance, while billing the U.S. company for their costs and services.

America’s furor over immigration has swept up the H-1B, which helps firms secure foreign workers but whose critics say is used to acquire cheaper labor. Uncertainty about lingering effects from a crackdown on the H-1B program by the administration of former President Donald Trump, combined with relatively onerous immigration and work permit processes and a pandemic-induced shift to remote work, have made the demand for Syndesus’ services stronger.

“Every day now, I’m on a call with someone whose H-1B didn’t get picked in the lottery,” Pavlopoulos said.

Pavlopoulos, who worked in the Bay Area in software sales before launching a recruiting firm, is now based in New York, employing a handful of skilled workers in Canada on behalf of U.S. companies through an outsourcing model known as a “professional employer organization.” Typically, PEOs provide a worker with the benefits of direct employment in a structure that resembles contract work.

Canada’s Consul General in San Francisco said the PEO industry is expanding rapidly, to his country’s benefit. “We’re in a global talent race right now,” Rana Sarkar said.

Canada, after relying for decades on logging, mining, hydroelectric power, and oil and gas to power its economy, has diversified rapidly and successfully into tech, leveraging a group of high-caliber universities and world-leading research centers. The country for nearly a decade has been smoothing the way for foreign workers to feed its boom, even buying billboard ads in Silicon Valley to woo workers at one point.

Pavlopoulos also believes the PEO industry is ripe to expand, in part because “most Silicon Valley tech companies do not know that this option exists.” In the first two years of his new business, Syndesus helped three tech workers who couldn’t stay in the U.S. get Canadian work visas. Pavlopoulos is applying for work permits for another six tech workers on expiring student visas and expects they’ll be living and working in Canada in four to eight weeks.

Companies whose work is done in Canada via a PEO also get the advantage of lower health insurance costs, and usually, lower salaries, Pavlopoulos said. But what many employers say they want most is good people, and quickly, he said.

Daniel Mandelbaum, a Toronto immigration lawyer who works with Pavlopoulos, added that Syndesus provides certainty for U.S. companies and employees. “The worker doesn’t have to be looking over their shoulder on temporary residence status,” he said.

Given Canada’s drive to bring in 1.2 million immigrants this year and the next two, and U.S. demand for skilled workers continuing to outstrip available visas, Mandelbaum expects he’ll continue to “feed this hungry beast south of the border” with tech workers located in Canada.

“This is the start of it,” Mandelbaum said. “We’re ramping up.”

Source: H-1B visa: American Silicon Valley veteran employs foreign workers in Canada for U.S. firms

Evidence Mounts That Reducing Immigration Harms America’s Economy

Some useful recent studies, particularly with respect to H1-B visas and skilled workers. Less convinced by some of the general demographic arguments, similar to those made in Canada by the Century Initiative and others. Shout-out to Canadian Darrell Bricker and John Ibbitson, authors of the book Empty Planet, making the same broader arguments (with some of the same fallacies):

Donald Trump’s immigration policies were harmful to America’s long-term economic future. That becomes clearer as one compares the Trump administration’s actions to the projected increase in the number of immigrants under recently introduced immigration legislation. The U.S. Citizenship Act, developed by the Biden administration, would aid long-term economic growth by increasing the number of legal immigrants by 28%. In contrast, Trump administration policies would have cut legal immigration in half. The immigration policy path America chooses in the long-term will make a significant impact on economic growth and future labor force growth, of which immigrants are a vital part.

Economic growth or growth in Gross Domestic Product (GDP) is necessary for a country’s inhabitants to improve their standard of living. “GDP growth [economic growth] is made up of growth in the workforce plus growth in labor productivity,” according to Robert S. Kaplan, president and CEO of the Federal Reserve Bank of Dallas. “Unless slower workforce growth is offset by improved productivity growth, U.S. GDP growth will slow.”

The Trump administration’s immigration policies harmed long-term economic growth by reducing labor force growth and potential productivity growth through restrictive policies.

High-skilled foreign nationals are important to productivity growth. Yet the Trump administration increased the denial rates of H-1B petitions, causing many long-time H-1B visa holders to leave the United States. The administration also blocked the entry of H-1B visa holders and published regulations that employers believed would make it nearly impossible for many foreign-born scientists and engineers to work in the United States.

“When we aggregate at the national level, inflows of foreign STEM [science, technology, engineering and math] workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010,” according to economists Giovanni Peri (UC, Davis), Kevin Shih (RPI) and Chad Sparber (Colgate University). Research by economist Britta Glennon found rather than saving jobs, H-1B restrictions “have the unintended consequence of encouraging firms to offshore jobs abroad.”

While the Biden-supported U.S. Citizenship Act may have a difficult time becoming law, it serves as a marker for changes to legal immigration by increasing both family and employment-based immigration. The bill would have a positive impact on labor force growth by raising immigration by 28% a year after a transition period.

“Increasing legal immigration by 28% a year would increase the average annual labor force growth in the United States by 23% over current U.S. projections, which would help economic growth and address a slower-growing U.S. workforce,” according to an analysis by the National Foundation for American Policy (NFAP). “The average annual labor force growth could be even more than 23% compared to a scenario of no immigration increases because the Bureau of Labor Statistics currently projects the U.S. labor force will grow by 800,000 a year, and that baseline growth may be lower after 2029 without the increase in immigration contained in the bill.”

“In contrast,” the analysis continues, “if the United States continued the Trump administration’s policies that administratively reduced legal immigration by approximately 49%, average annual labor force growth would be approximately 59% lower than compared to a policy of no immigration reductions, according to an NFAP analysis. Under policies that reduced legal immigration by half, in 40 years the United States would have only about 6 million more people in the labor force than it has today. Admitting fewer immigrants results in lower economic growth because labor force growth is an important element of economic growth and immigrants play a major part in both current and future labor force growth.”

A recent National Foundation for American Policy study by Madeline Zavodny, an economics professor at the University of North Florida, shows the positive impact of immigration.

“Analysis of U.S. Census Bureau data finds international migration was the only source of population growth in rural areas as a whole during most of the 2010s,” writes Zavodny. “International migration is strongly related to employment growth in both rural and metro counties. Each additional international migrant is associated with an additional 1.2 jobs in rural counties over 2010 to 2018. The estimate for rural areas suggests that international migration adds to total employment well beyond the jobs filled by international migrants. International migrants may have a larger impact on employment because of the jobs they fill. International migrants may work in jobs that otherwise would go unfilled by local residents and thereby enable businesses to expand.”

Due to declines in fertility, immigration keeps the United States from experiencing negative population growth, according to the U.S. Census Bureau.

New economic research finds that negative or falling population growth may yield harmful economic outcomes beyond slowing labor force growth. Fewer available minds may mean fewer solutions to our problems. What if the breakthrough advances in mRNA made by Katalin Karikó, an Hungarian-born immigrant to America, never happened or occurred years later because Karikó was never born? How would that have affected the development of vaccines and other potential solutions to medical problems?

In a recent paper, “The End of Economic Growth? Unintended Consequences of a Declining Population,” Charles I. Jones, a professor of economics at the Stanford Graduate School of Business, writes, “What happens to economic growth if population growth is negative? We show below—first in models with exogenous [external] population growth and then later in a model with endogenous (internal) fertility—that negative population growth can be particularly harmful.” He asks: “How do idea-based growth models behave when population declines?”

In sum, with fewer people, “knowledge and living standards stagnate.” Jones writes, “If knowledge were to depreciate at a constant exogenous [external] rate, it is easy to show in the simple models at the start of this paper that this would lead to declining living standards in the presence of negative population growth, an even more dire outcome.”

“We refer to this as the Empty Planet result,” writes Jones. “Economic growth stagnates as the stock of knowledge and living standards settle down to constant values.”

Immigration can prevent population decline in the United States and allow America to grow—if U.S. elected officials choose the right policies. “Among great powers, the coming population decline uniquely advantages the United States,” according to Darrell Bricker and John Ibbitson, authors of the book Empty Planet, the title to which Charles Jones referred. “For centuries, America has welcomed new arrivals, first from across the Atlantic, then the Pacific as well, and today from across the Rio Grande. Millions have happily plunged into the melting pot—America’s version of multiculturism—enriching both its economy and culture. Immigrants made the twentieth century the American century, and continued immigration will define the twenty-first as American as well.

“Unless. The suspicious, nativist, America First groundswell of recent years threatens to choke off the immigration tap that made America great by walling up the border between the United States and everywhere else. Under President Donald Trump, the federal government not only cracked down on illegal immigrants, it reduced legal admissions for skilled workers, a suicidal policy for the U.S. economy. If this change is permanent, if Americans out of senseless fear reject their immigrant tradition, turning their backs on the world, then the United States too will decline, in numbers and power and influence and wealth. This is the choice that every American must make: to support and open, inclusive, welcoming society, or to shut the door and wither in isolation.” It is a significant choice.

Source: Evidence Mounts That Reducing Immigration Harms America’s Economy

USA: Immigration Bill Shows Need To End Employment-Based Immigrant Backlog

Good backgrounder:

Without a change in immigration law, it will be sometime in the year 2216—195 years from now—when the last person born in India waiting today in the employment-based immigrant backlog is expected to receive a green card. Barring advances in human longevity, businesses and high-skilled foreign nationals must rely on Congress to solve this problem and enact reasonable policies to welcome highly skilled people who want to become Americans.

The Scope of the Problem: H-1B and L-1 (intracompany transferee) are temporary statuses, meaning if someone wishes to remain in the United States, they must obtain an employment-based immigrant visa (or green card) that grants permanent residence. However, there is far greater demand for high-skilled individuals than the limited number of employment-based green cards allotted by Congress.

Since 1990, when Congress set the annual limit on employment-based immigrants at 140,000 (and 65,000 H-1B temporary visas), changes in technology have accelerated the demand for high-skilled technical labor. Congress established the current employment-based limits before the internet became a part of daily life. It also predates the iPhone, the iPad, YouTube, e-commerce, Netflix, Google, cloud computing and thousands of innovative companies and technologies that have come into existence and fueled the demand for high-skilled labor.

U.S. businesses would still need more scientists and engineers to grow and innovate even if the number of Americans earning degrees in science and engineering had exploded—and it hasn’t.

Between 1995 and 2015, full-time U.S. graduate students in electrical engineering decreased by 17%. The number of full-time U.S. graduate students in computer science increased by 45% from 1995 to 2015, while international graduate students increased by over 480%. (H-1B visa fees paid by employers have funded approximately 100,000 college scholarships for U.S. students in science and engineering.)

As of March 2020, the backlog in EB-1, EB-2 and EB-3—the employment-based first, second and third preferences—was 915,497, according to the Congressional Research Service (CRS).

Without Congressional action, notes CRS, the problem will grow worse: “The total backlog for all three categories would increase from an estimated 915,497 individuals currently to an estimated 2,195,795 individuals by FY 2030.”

Let that number sink in: Within a decade, more than 2 million people will be waiting in line, most for many years or even decades, for employment-based green cards. And there are indications this underestimates the problem.

Table 1 shows that in FY 2018 only about 4,500 Indians obtained permanent residence in the employment-based second preference and fewer than 6,000 received green cards in the employment-based third preference. (The National Foundation for American Policy obtained the data via a Freedom of Information Act request.)

CRS estimates the annual demand for employment-based green cards in the three preference categories is 262,376 (including dependents). This is based on petitions U.S. Citizenship and Immigration Services (USCIS) approved in FY 2018. CRS explains the backlog grew because there is a “current limit of 120,120 green cards for the three employment-based immigration categories.”

Another problem is that Congress established a per-country limit of 7% for each country that burdens mainly potential employment-based immigrants from India but also affects people born in China and the Philippines. The law, in effect, gives the same number of green cards for employment to India as it does Iceland.

In the employment-based second preference (EB-2): “Under current law, and owing to a limited number of green card issuances, the current backlog of 568,414 Indian nationals would require an estimated 195 years to disappear,” according to CRS. David Bier of the Cato Institute predicts “about 186,038 Indian immigrants will die . . . before they receive green cards even if they could remain in line forever.”

“By FY 2030, [the] estimated wait time would more than double,” according to CRS. “Under S. 386, the estimated wait time for newly approved EB-2 petition holders would shrink to 17 years, and in FY 2030, the wait time would be 37 years, the same as for all other foreign nationals.”

S. 386 was a bill in the last Congress sponsored by Sen. Mike Lee (R-UT) that would have eliminated the per-country limit for employment-based immigrants. Rep. Zoe Lofgren (D-CA) wrote H.R. 1044 with Rep. Ken Buck (R-CO) and it passed the House in July 2019. The companion bill, S. 386, was blocked in the Senate for more than a year. It became a Christmas tree for extraneous immigration provisions. The Senate finally approved S. 386 near the end of the session but the House found the provisions to be objectionable and it did not become law. The bill would not have increased the number of employment-based green cards but would have reduced the wait times for those waiting the longest for permanent residence, particularly professionals from India.

Without any change in the law, CRS predicts: “Currently, new Indian beneficiaries entering the EB-3 [employment-based third preference] backlog can expect to wait 27 years before receiving a green card.” (The wait time would be much longer in the EB-2 category.)

Scientists and engineers waiting for their green cards may see their children who have lived in the United States for years be forced to leave the country when they “age out” of their place on a mother or father’s immigration application when reaching 21 years old. USCIS policies during the Trump administration caused many spouses of H-1B visa holders waiting for green cards to lose their work authorization due to long processing delays.

New Immigration Bill Would End the Employment-Based Backlog: The U.S. Citizenship Act, developed by the Biden administration, would eliminate the employment-based backlog within 10 years through various provisions, according to a National Foundation for American Policy (NFAP) analysis.

First, the bill would no longer count spouses and children toward the annual limit, which would approximately double the annual number of employment-based green cards. Second, the legislation increases the annual limit for family-sponsored immigrants and allows unused numbers from the family categories to be used by the employment categories. That means once the family backlog is eliminated, which NFAP predicts could happen within 5 or 6 years, backlog reduction in the employment-based categories would accelerate.

Third, the bill eliminates the per-country limit. Fourth, the legislation allows unused green cards from earlier years to be redirected to reduce family and employment backlogs.

The bill also contains a provision, which NFAP has recommended, to allow any individuals who wait at least 10 years with an approved immigrant petition to receive permanent residence without numerical limit. If Congress passed only this reform, it would help many people and bring certainty to otherwise interminable waits for many employment-based immigrants.

Related to the backlog, in its final days, the Trump administration published a final rule designed to price employment-based immigrants and H-1B visa holders out of the U.S. labor market. The regulation would boost required wages 23% to 41% depending on the occupation, according to an NFAP study. The regulation could block people waiting for green cards if the new required salary is too high for an employer to retain them in H-1B status. (Individuals can be extended in H-1B status while waiting for an employment-based green card.)

If the Biden administration keeps the rule, it would be a significant victory for former White House adviser Stephen Miller and opponents of immigration.

Numerous studies and private wage surveys show that there is no evidence high-skilled foreign nationals are paid less than comparable U.S. professionals. If employers were forced to pay high-skilled immigrants 41% more than comparable U.S. workers, one would expect critics would still claim the immigrants were paid less because that is typically the only argument put forward against high-skilled foreign nationals who work in America. Members of Congress are repeatedly told to believe the only value someone born in another country offers a U.S. business or the U.S. economy is a willingness to work for less money.

If we have learned one thing from the pandemic, it is how valuable immigrants are to America. Immigrants play key roles in the two companies responsible for the Covid-19 vaccines Americans are receiving to protect their lives. Moderna’s leaders, two cofounders and critical scientific personnel are immigrants, as are the chief executive (and chief science officer) of Pfizer and a key scientist (Katalin Karikó) who made a crucial breakthrough on messenger RNA,” as noted in a December 2020 article. Even the founders of Pfizer were immigrants.

“We have blown the opportunity to maximize the incredible high-skilled immigrants in this country,” said Sen. Kevin Cramer (R-ND) at a recent hearing. “The backlog of green cards is immoral to me.” Will this be the year moral outrage and economic sense lead to a solution for employment-based immigrants?

Source: Immigration Bill Shows Need To End Employment-Based Immigrant Backlog

DOL H-1B Visa Wage Rule: Donald Trump’s Bad Parting Gift To Immigrants

Two contrasting views on the Trump administration’s rule imposting higher salary requirements on H-1B visas. The first from the National Foundation for American Policy opposes the change, the second, from the Niskanen Center, supports it. From a self-interested Canadian perspective, the Trump rule provides an immigration advantage to Canadian firms.

Starting with opposition to the change: 

The Department of Labor (DOL) reissued a controversial rule designed to price H-1B visa holders and employment-based immigrants out of the U.S. labor market, setting up new legal battles and a decision by the Biden administration on whether to keep a rule that fulfills a key part of White House adviser Stephen Miller’s anti-immigration agenda. The final rule makes only minimal substantive changes from the original rule and was drafted to avoid the violations of the Administrative Procedure Act (APA) that caused three judges to issue opinions blocking the regulation.

Under immigration law, employers must pay H-1B visa holders the higher of the prevailing wage or actual wage paid to similar U.S. workers. DOL determines the prevailing wage with data from the government’s Occupational Employment Statistics (OES) wage survey and uses a mathematical formula to create four levels of wages for each occupation.

A formula is already problematic, since it is much less accurate than asking employers what they pay employees at different levels of experience. A formula can be manipulated to achieve a result, as analysts note, by artificially raising the required wage. That is what the Department of Labor has done in the two versions of its wage rule.

The Department of Labor (DOL) reissued a controversial rule designed to price H-1B visa holders and employment-based immigrants out of the U.S. labor market, setting up new legal battles and a decision by the Biden administration on whether to keep a rule that fulfills a key part of White House adviser Stephen Miller’s anti-immigration agenda. The final rule makes only minimal substantive changes from the original rule and was drafted to avoid the violations of the Administrative Procedure Act (APA) that caused three judges to issue opinions blocking the regulation.

Under immigration law, employers must pay H-1B visa holders the higher of the prevailing wage or actual wage paid to similar U.S. workers. DOL determines the prevailing wage with data from the government’s Occupational Employment Statistics (OES) wage survey and uses a mathematical formula to create four levels of wages for each occupation.

In October 2020, the Department of Labor issued an interim final regulation that raised the required wage employers must pay not just to H-1B visa holders but for employment-based immigrants who required labor certification. Three courts blocked the rule on grounds that it violated the Administrative Procedure Act by claiming a “good cause” exception to allow the regulation to go into effect immediately without notice and comment. Judges cited, among other things, a National Foundation for American Policy analysis that showed the unemployment rate for computer occupations had not increased during the pandemic.

The new rule does not go into effect for 60 days. It also phases in the latest higher salary requirements over several months. Trump officials hoped that would force employers and universities to argue that the regulation violates the statutory language or did not properly address comments, rather than the more straightforward violations of the Administrative Procedure Act contained in the original rule that were defeated in court.

The Fragomen law firm summarized the regulation’s phase-in:

  • “Phase 1, Rule Effective Date through June 30, 2021: LCAs [labor condition applications] filed and PWDs [prevailing wage determinations] issued during this timeframe are to remain subject to current wage levels, with Level I at the 17th percentile, Level II at the 34th percentile, Level III at the 50th percentile and Level IV at the 67th percentile.
  • “Phase 2, July 1, 2021 through June 30, 2022: The new wage levels will take effect, however, they are to be adjusted downward as follows – Levels I and IV are to be set at the higher of either 90% of the wage value calculated at the 35th and 90th percentile or the mean of the lower one-third of the current OES wage distribution. Levels II and III are to be set using the wage calculations outlined in the Immigration and Nationality Act (INA), which rely on the amounts listed in Levels I and IV.
  • “Phase 3, July 1, 2022 and after: The new wage levels are to take effect without any adjustments, with Level I at the 35thpercentile, Level II at the 53rd percentile, Level III at the 72ndpercentile and Level IV at the 90th percentile.”

“The revisions to the rule don’t change the fact that it still fails to do what the law requires—to reflect the actual, prevailing wage for workers in that geographical area doing similar work,” said Kevin Miner, a partner at Fragomen, in an interview. “The fact that Level 1 wages are now tied to around the 35th percentile rather than the 45th percentile doesn’t change the fact that it is artificially inflating required wages. Prevailing wage data published by DOL should reflect the actual wages paid in the market. It should be math, not politics. If Congress wants to make changes to the H-1B statute, it can do so. But DOL shouldn’t be trying to do that through rulemaking.”

The new rule has the same defects as the earlier version, even if the wage effects are slightly less extreme, according to a preliminary analysis by the National Foundation for American Policy. In effect, at the 35th percentile, the new rule would require employers to pay an entry level employee the same or more than 35% of the people working in the same occupation and geographic location, even if those individuals have much more experience.

One way of looking at the new rule is since the current Level 2 wage is at the 34th percentile, and the new Level 1 is at the 35th percentile, then what the new rule does is eliminate the entire Level 1 wage level and pushes everything else upwards. “That is one of the ways the rule violates the statute,” said Miner.

The wages mandated under the DOL rule do not reflect market wages or meet the definition of a prevailing wage. “The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment,” according to the Department of Labor.

Compared to the regulation in effect for years, the new DOL rule will require employers to pay, on average, 34% higher salaries at the Level 1 wage for biochemists and biophysicists, 29% higher for software developers and database administrators, and 28% more for computer programmers, according to a National Foundation for American Policy (NFAP) estimate of the new rule’s impact.

To examine how much above the market wage the new rule requires employers to pay, NFAP looked at private wage survey data. Under the new DOL mandated minimum salary, an employer in the San Jose, California area would pay an electrical engineer at Level 4 more than $41,000 above the market wage, as indicated by a private wage survey (Willis Towers Watson). At Level 1, an employer in San Jose would pay an electrical engineer more than $36,000 above the market wage, according to an NFAP estimate.

The Department of Labor wage rule is designed to make it as difficult as possible for employment-based immigrants and visa holders to enter or work in America. The DOL wage rule should be viewed the same as Trump administration’s policies that ended nearly all refugee admissions, prevented individuals from applying for asylum, banned people from several Muslim-majority nations and stopped family immigrants from entering the United States.

H-1B visas are important because they generally represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United States and have a chance to become employment-based immigrants and U.S. citizens. Analysts note the visas are a crucial part of America’s ability to innovate at a time when elected officials want companies to develop and produce more products and services in the United States.

Pricing visa holders and immigrants out of the U.S. labor market will push more work to other nations and further discourage international students from coming to America. Economists recognize there is a global market for labor, which is ignored in the DOL rule: “[A]ny policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad,” according to research by Britta Glennon, an assistant professor at the Wharton School of Business.

Litigation is expected from employers. The more critical issue is whether the Biden administration will implement the Trump administration’s most recent assault on high-skilled immigration or move to rescind or substantially revise the regulation through the rulemaking process.

The DOL wage rule is Donald Trump and Stephen Miller’s parting gift to immigrants, universities and high technology companies. The Biden administration must decide if it wants to carry out the Donald Trump-Stephen Miller agenda on immigration.

Source: DOL H-1B Visa Wage Rule: Donald Trump’s Bad Parting Gift To Immigrants

In support, from the Niskanen Center:

Just days before the 2020 election, the Trump administration proposed a new ruleto change how H-1B visas are allocated. The final rule was announced last week and is set to go into effect before the 2022 H-1B lottery. The Biden administration will have many Trump-era immigration rules to reverse. But this rule — uniquely — is worth supporting after the end of the Trump administration, since it ensures visas go to the best and brightest, reduces risk for H-1B employers, protects native workers, and fulfills one of Biden’s campaign promises.

Allocating visas efficiently

The demand for cap-subject H-1Bs consistently outpaces the 85,000 that are allowed each year. The result is a zero-sum game; one employer’s approval is necessarily one fewer visa available to other employers. And the lottery-based allocation established under the old rules dictates that virtually all employers are equally likely to win, regardless of their petitions’ relative merit.

The new rule replaces the random lottery with a wage-based ranking, awarding visas to employers offering the largest salaries. Under wage-based allocation, U.S. Citizenship and Immigration Services no longer has to be indifferent between a superstar who is a perfect fit for a lucrative niche job and a worker to fill an entry-level position. Instead, USCIS can ensure visas are going to the most valuable workers.

Of course, much of this zero-sum competition is artificially imposed by the low H-1B cap — even the less productive H-1B-eligible workers with sponsors would still be of enormous benefit to the United States. But the Department of Homeland Security can’t get rid of the cap. It can make sure that in the face of the cap, visas go to the best and brightest of the best and brightest.

Pro-worker and pro-business

In addition to allocating H-1Bs efficiently, wage-based allocation yields three other significant benefits.

First, it protects native workers. Labor market competition between H-1B workers and natives is largely overblown, with H-1B workers earning much more on average than natives of the same level of education. However, there are several disturbing cases where businesses use H-1B workers to replace or undercut natives, even if such cases are quite rare. However uncommon, such cases are bad for the native workers affected and bad for the H-1B program’s political prospects. After all, how can lawmakers be persuaded to raise the cap if H-1Bs are already displacing workers?

Naturally, the issue is the lottery system, which often awards visas to the least deserving petitions and incentivizes the proliferation of outsourcing companies and H-1B dependent firms. Assigning visas to the workers who will earn the highest salaries automatically makes cases of abuse financially unviable. Making employers compete for visas by offering better wages is pro-worker and can help recover some of the program’s damaged reputation.

Second, wage-based allocation is good for business and reduces a tremendous amount of waste. Under a lottery, businesses face costly uncertainty about whether all the money and time spent trying to secure a visa will pay off. If an employer wins the lottery, their new employee will make the process worth it, but if they lose, the resources are squandered. On top of the waste, the uncertainty and risk deters some businesses from participating at all. Wage-based allocation addresses these issues, giving high-paying employers security and reliability, while providing lower-paying employers the signal they need to know they won’t win a visa if they petition for one.

Third, a wage-based allocation generates valuable information to lawmakers about the value of H-1Bs. Each year’s salary cutoff — that is, the lowest salary that still secures a visa — sends a  much stronger signal about the demand for H-1B labor than does the number of lottery applicants, which can obscure the underlying need for workers by only including employers who are willing to take on the risk inherent in entering the lottery. As demand for labor increases, it might not show up clearly in the number of H-1B applications because the value of an H-1B application decreases as the probability of winning the lottery decreases. Therefore, the number of H-1B applications is a mixed signal about the demand for workers and the risk-aversion of employers that is hard to disentangle. On the other hand, movement in a salary cutoff can more transparently inform lawmakers how to set the cap and assure them that increasing it won’t lead to low-wage labor.

As it happens, this policy is included in Biden’s immigration plan. “An immigration system that crowds out high-skilled workers in favor of only entry level wages and skills threatens American innovation and competitiveness,” his plan reads. Then it follows with Biden’s proposal to fix it: “first reform temporary visas to establish a wage-based allocation process.” Granted, Biden’s plan indicates that he hoped the change would come from Congress.

Nevertheless, allowing the rule to stand would make sure that talent and resources aren’t squandered in the next lotteries before Congress has a chance to get to it — if it does at all. Meaningful H-1B reform to charge innovation and productivity growth doesn’t stop at wage-based allocation, but it’s a promising start.

Source: Trump’s One Immigration Reform That Biden Should Keep

Trump Moves to Tighten Visa Access for High-Skilled Foreign Workers

Subject to the inevitable legal challenges and likely perverse effects:

The Trump administration announced significant changes on Tuesday to the H-1B visa program for high-skilled workers, substantially raising the wages that U.S. companies must pay foreign hires and narrowing eligibility criteria for applicants.

Top administration officials framed the changes as a way to protect American jobs during the coronavirus pandemic, even though the Trump administration first committed to overhauling the program in 2017 as part of its efforts to reduce the number of foreign citizens employed in the United States.

“With millions of Americans looking for work, and as the economy continues its recovery, immediate action is needed to guard against the risk lower-cost foreign labor can pose to the well-being of U.S. workers,” Patrick Pizzella, the deputy secretary of labor, told reporters on Tuesday.

The rules will directly affect foreign workers and employers, especially tech companies that have long supported the H-1B program and pushed hard for its expansion.

Kenneth T. Cuccinelli, the acting deputy secretary of homeland security, said he expected the changes to cut by one-third the number of petitions filed annually for the coveted visas.

The changes will be published this week as interim final rules, meaning that the agency believes it has “good cause” to claim exemption from the normal requirement to obtain feedback from the public before completing them.

Immigration lawyers and experts predicted that the changes would be swiftly challenged in court because they bypassed the normal regulatory process.

“The public hasn’t even seen these regulations yet and won’t have the usual opportunity to provide comments, as required by Congress,” said Doug Rand, a founder of Boundless Immigration, a technology company in Seattle that helps immigrants obtain green cards and citizenship. “Given the inevitability of court challenges, it seems like slim odds that these policies are built to last.”

The government issues 85,000 H-1B visas each year, often using a lottery to award them because the number of workers sought by companies almost always surpasses the number of available visas. Many workers are eventually sponsored by their employers for green cards to remain permanently in the United States.

Some critics suggested that the changes, which came less than a month before the election, were politically motivated.

“Why this, why now, and why is it an interim final rule?” said Theresa Cardinal Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center. “There’s no estimate of the amount of jobs this would actually free up for U.S. workers. It’s a bank shot at best.”

The Labor Department rule, which takes effect upon publication, would increase wages across the board for foreign workers, based on surveys of salaries in each profession. Companies would have to pay entry-level workers in the program in the 45th percentile of their profession’s salary rather than the 17th percentile. Wages for higher-skilled workers would rise to the 95th percentile from the 67th percentile.

“It will also likely result in higher personnel costs for some employers,” according to the Labor Department rule. “The purpose of protecting U.S. workers outweighs such interests and justifies such increased costs,” the agency added.

But Stephen Yale-Loehr, a professor of immigration law at Cornell Law School, said the rule would have the opposite effect.Sign up to receive an email when we publish a new story about the2020 election.Sign Up

“By increasing the required wages, the new rules will harm all employers trying to hire foreign workers, but especially start-up companies and smaller firms who may not be able to meet the increased wage requirements,” he said.

The Department of Homeland Security’s rule, which takes effect in 60 days, would also tighten the eligibility for visa applicants. The rule would require the foreign workers to have a degree in the “specialty occupation” they apply for, rather than any college degree. Some would also need to show how their studies provided “a body of highly specialized knowledge” for a potential job in the United States.

The largest share of H-1B visa holders are employed by the tech sector, where they work as computer engineers and software developers. The visas are also issued to architects, accountants and physicians, among other professionals.

The rule will almost certainly have an adverse effect on rural hospitals and other health care providers that depend on a steady pipeline of physicians from abroad because they cannot attract enough American doctors, who generally prefer to practice in urban areas.

For example, instead of offering a minimum starting salary of $120,000 to $130,000, a clinic in northeastern Pennsylvania, which is considered an underserved area, would have to pay a foreign physician around $195,000 or $200,000.

“Entry-level doctors in rural areas will have to be offered experienced-level wages, which may be more than their supervisor is being paid,” said William A. Stock, an employment immigration lawyer in Philadelphia. “This will further restrict the supply of doctors willing to move to parts of rural America. It will put providers in a jam that they can’t afford to hire foreign-born doctors.”

The H-1B rule comes on the heels of a proclamation signed by President Trump in June that suspended an array of worker visasuntil at least Dec. 31. Groups representing thousands of businesses challenged that proclamation, which affected H-1Bs, H-2B seasonal work visas, L-1 visas for executives being transferred by companies and cultural-exchange J-1 visas, including au pairs.

The groups won a reprieve last week, when a federal judge ruledthat Mr. Trump had overstepped his authority in banning the visas.

“There must be some measure of constraint on presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power,” the judge said.

His order was at odds with an earlier decision by a federal judge in Washington, which ensured that an appeals court would make the ultimate determination.

But it immediately set aside the ban for companies that employed large numbers of foreign workers.

Source: https://www.nytimes.com/2020/10/06/us/politics/h1b-visas-foreign-workers-trump.html

H-1B Visa Guidance Means Trump Likely Expects To Lose In Court

Interesting interview with immigration lawyer  H. Ronald Klasko and Stuart Anderson (Canadian tech immigration advantage):

Recent guidance issued by the U.S. Department of State to provide more exceptions to a presidential proclamation that banned the entry of H-1B and L-1 visa holders signals the Trump administration likely expects to lose in federal court. Examining a chronology of events supports this view.

–        On June 22, 2020, the Trump administration issued a presidential proclamation (P.P. 10052) that suspended the entry of foreign nationals on H-1B, L-1 and certain other temporary visas until at least December 31, 2020. The proclamation extended another proclamation, P.P. 10014, which suspended the entry to the United States of most immigrant visa applicants.

–        On July 15, 2020, Wasden and Banias, LLC filed a motion for preliminary injunction on behalf of 174 Indian nationals, asking a court to compel the State Department “to issue decisions on the plaintiffs pending requests for H-1B and H-4 visas.”

–        On July 31, 2020, the American Immigration Lawyers Association, Justice Action Center and Innovation Law Lab filed a motion for a preliminary injunction to enjoin the presidential proclamations on behalf of families, employers and organizations.

–        On August 10, 2020, 52 prominent companies and organizations filed an amicus brief in a lawsuit against the June proclamation brought by the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet and Intrax. In the amicus brief, companies provided examples of how the proclamation harmed U.S. employers by blocking access to talented professionals, executives and others.

–        On August 12, 2020, just two days after the amicus brief from companies was filed, the State Department issued new guidance that broadened the “national interest exceptions” to the June 22nd proclamation (and P.P. 10014) to provide, at least in theory, more ways that foreign nationals and their employers could overcome the suspension on entry contained in the proclamations.

To explore the reasoning and implications behind the Trump administration’s legal maneuvers, I interviewed H. Ronald Klasko, managing partner and founding member of Klasko Immigration Law Partners, LLP. Klasko has practiced immigration law for more than three decades.

Stuart Anderson: Why do you think the State Department issued a guidance memo on August 12th that added more exceptions to the proclamation’s ban on H-1B, L-1 and other visa holders?

H. Ronald Klasko: In my opinion, the answer is obvious. The government’s attorneys likely advised that there is a very good chance that an injunction enjoining the implementation of the nonimmigrant (temporary) visa ban will be issued by one or more of the federal court judges in the pending litigations challenging the legal authority for the issuance of the ban.

The guidance memo appears to be an attempt to address many of the specific issues raised in the declarations and the amicus briefs regarding the prejudice and irreparable harm that this ban is inflicting on companies and foreign nationals. To me it is a clear sign that the administration is cognizant of the likelihood that it will be unsuccessful in avoiding the preliminary injunction unless it attempts to ameliorate the most harmful effects of the proclamation.

I do not believe that this tactic will be successful in preventing the issuance of an injunction because it does not address the legality of the ban. I believe the arguments challenging the legality of the ban are strong.

In addition, I assume that the lawyers involved in the various lawsuits challenging the ban will raise a number of issues, including some or all of the following: 1) the State Department guidance is not binding; 2) its issuance violates the Administrative Procedure Act (APA); and 3) the guidance is an attempt to impose the administration’s wish list for new H and L requirements, which it had planned to issue through regulation, by imposing these new requirements at the consular level as ways to be granted national interest exceptions to avoid the visa ban.

Presently there are no separate H or L requirements at the consular level. Rather, qualifications for these visas are based on a set of regulatory requirements at U.S. Citizenship and Immigration Services (USCIS) that can be reviewed by the courts. The State Department guidance memo creates a new set of requirements for the issuance of these visas that do not exist in the regulation.

By placing the requirements in a State Department guidance memo, it puts them in the context of national interest exceptions that are discretionary determinations and arguably non-reviewable in the courts. In contrast, USCIS adjudications and regulations can be challenged in court.

Anderson: Are there other reasons why the administration issued these measures on H-1B and L-1 visas in the guidance memo rather than in a regulation through the Department of Homeland Security?

Klasko: If the guidance were done through Administrative Procedure Act (APA) rulemaking, the process for notice and comment would be very lengthy time-wise. If the regulation were issued without notice and comment, it would be immediately challenged in the courts. In addition to the timing issue, many of the changes contained in the guidance memo would be subject to challenge as being inconsistent with the statute. (See here.)

Anderson: How would recent immigration memos and regulations be affected if Chad Wolf and Ken Cuccinelli are found to have been unlawfully holding their posts at the Department of Homeland Security and U.S. Citizenship and Immigration Services as the Government Accountability Office concluded?

Klasko: It likely will not impact the nonimmigrant visa ban and the immigrant visa ban, which were implemented through presidential proclamations rather than through memos or policies issued by the Department of Homeland Security (DHS) or USCIS. However, it could definitely be an issue in litigation challenging policies emanating from DHS or USCIS, such as public charge, asylum changes and possibly challenges to possible H-1B regulations.

Anderson: Do think the State Department guidance was helpful to companies and visa applicants?

Klasko: The State Department guidance is helpful in that it creates some possibilities for ameliorating the impacts of the nonimmigrant visa ban for at least some foreign nationals and companies. However, it is an example of a memo where there is less than meets the eye. It creates out of whole cloth an extremely document-intensive process with new requirements completely independent of the (document-intensive) process necessary to obtain USCIS approval of the H or L petition. Companies will have to document conformity with all new standards and requirements with no interpretations and with no certainty if, when and how the consular officers will adjudicate the national interest exceptions (NIEs).

Let’s look at how this will work. First, before there can be an adjudication of the NIE, the foreign national will have to be approved for an emergency appointment at the consulate, which requires proof that the travel is of an emergent nature.

Second, the consular officers will have to adjudicate the national interest exception application subject to no standards or guidance. Who knows how long it will take consular officers to complete these adjudications given that they already have extremely lengthy backlogs from 5 months of closure and they have never had to adjudicate these types of applications previously? This doesn’t even mention the fact that travel bans are still in effect for Schengen, UK, Ireland, China and Brazil.

None of this even addresses how difficult it will be to meet the language of the guidance memo. Most H-1Bs who are not resuming ongoing employment in the U.S. must meet a very difficult standard: their travel must be “necessary” to facilitate the “immediate and continued economic recovery of the U.S.” Think about it, how many H-1Bs are necessary to facilitate the immediate and continued economic recovery of the U.S.?

If the applicant meets those requirements, he then must show that he is making a “significant” and “unique” contribution to an employer meeting a critical infrastructure need. Uniqueness has never been a requirement of the immigration law. If it is really interpreted as requiring that the H-1B be the only person who could possibly do the job, the entire memo may be illusory. One other note: If the applicant is performing or could perform the functions of the position remotely from outside the U.S., he apparently doesn’t qualify.

For L-1s, it is not enough to be a manager or executive, which is the statutory and regulatory requirement. Under the State Department guidance, it is necessary to be a “senior level” executive or manager, which has no definition or guidance. Also, the statutory and regulatory requirement for an L-1 is that the transferee has been employed by the employer for at least 1 year. The State Department guidance requires multiple years of employment. How many years is multiple years?

In summary, the State Department guidance is better than no guidance at all, but possibly not much better.

Anderson: What do you think will happen between now and the end of the year on high skill immigration?

Klasko: I think in the coming months there is a good chance that the nonimmigrant ban and the immigrant ban will be enjoined by at least one federal court. I think that it is possible, and even likely, that there will be additional presidential proclamations of highly questionable legality attempting to implement further restrictions on high skilled immigration. I also think it is possible, or even likely, that there will be an effort to restrict high-skilled immigration through the regulatory process, possibly avoiding the notice and comment rulemaking required by the Administrative Procedure Act. I think litigators will be busy.

Source: https://www.forbes.com/sites/stuartanderson/2020/08/19/h-1b-visa-guidance-means-trump-likely-expects-to-lose-in-court/?utm_source=newsletter&utm_medium=email&utm_campaign=follow&utm_campaign=follow&cdlcid=5e4bc7f55b099ce02faa6b40#69373e5f15ab

Concerns about scientist immigration to the US have amplified during the COVID-19 pandemic

From the trade publication, Chemical & Engineering News:

The COVID-19 pandemic has caused research disruptions and career delays for many chemistry graduate students and postdoctoral scholars worldwide. But in the US, scientists were already worried about the effect that President Donald J. Trump’s administration is having on the flow of people coming into the country to study or work. Some are concerned that the pandemic is making that situation worse.

In the US, concerns about immigration have amplified

International student applications to the US have declined since Trump took office, according to the Council of Graduate Schools. The drop in applications is something that most experts attribute to anti-immigrant rhetoric from the administration.

The White House has moved beyond rhetoric during the pandemic. On June 22, Trump issued a temporary ban on H-1B and other non-immigrant visas often used by companies and universities to hire international scientists, including postdocs. He also extended a previous order that halted processing of some green card applications for permanent residency.


1.6 million

Number of international scientists studying or working in the US as part of the Student and Exchange Visitor Program in 2018, down 1.7% from 2017


Science, technology, engineering, and mathematics students working in the US through an Optional Practical Training visa extension in 2018, up 8% from 2017


Proportion of chemistry doctoral degrees awarded to students on a non-immigrant visa, out of a total of 2,810 degrees awarded in 2018


Scientists alleged by the US National Institutes of Health to have violated foreign-influence reporting rules since 2018; of these, 82% were Asian and 14% were white


Scientists who resigned or were dismissed from their jobs since 2018 because of alleged violation of US National Institutes of Health foreign-influence reporting rules

Sources: US Immigration and Customs Enforcement, National Science Foundation, and National Institutes of Health

In addition, Trump has issued a vaguely-worded executive order limiting visitors associated with China’s “military-civil fusion strategy.” He also shut down some flights from China to the US. In Congress, a billsponsored by several Republicans would stop immigration from China altogether. Those moves could have a significant impact on scientists’ ability to get visas at the same time that closed borders and consulates along with canceled flights are keeping them from traveling.

Schools outside the US are taking advantage of the resulting uncertainty, says University of Chicago chemistry professor Weixin Tang. One example she has seen: a Hong Kong university is advertising for PhD students and postdocs, even though it isn’t their usual hiring season. “They’re opening up slots to recruit students and postdocs who were scheduled to come to the US,” she says. In addition,

In addition, attacks on Chinese scholars are of particular concern to scientists given the large numbers of students and postdocs in science fields, including chemistry, who historically have come to the US for training. Contributing to the unease are the US Department of Justice’s efforts to prosecute scientists who collaborate with China, an initiative started as part of a larger US-China trade war.

Peter Kilpatrick, provost at the Illinois Institute of Technology (IIT), says his school has seen declining enrollment from China. The Chinese government does overreach in its technology-gathering efforts, he says, but “the vast majority of the people in China are not associated with the government, and they’re not responsible for espionage and [intellectual property] theft, etc. So the question is where do you draw the line? How do you parse who to throw the doors open to and who to say ‘We need to be careful.’ ”

Many universities are particularly concerned about rumored threats to optional practical training (OPT), which allows students and postdocs to extend their student visa to do internships or work in the US. For science, technology, engineering, and mathematics (STEM) students, visas may be extended up to 3 years under OPT. Trump has so far not restricted OPT extensions, although he could still do so in the future.

At IIT, loss of OPT would be a threat to the institution itself, Kilpatrick says. The school relies on tuition from its large number of master’s degree programs.

“If OPT goes away, we lose all of our international students. I mean, what would be their motivation for coming?” he asks. Many people come to the US because they can combine getting a degree with the chance to get work experience and gain connections in the US. Without that, it could be “the death knell for higher education in this country,” Kilpatrick says.

Chuan He, a University of Chicago chemistry professor, says loss of OPT “would be a pure disaster.” OPT provides a critical opportunity at a key time in international scientists’ careers for them to transition from one job to another, and it is vital to keep highly trained students with critical skills in the country, He says. “We want them to stay, right?”

Computational and theoretical chemist Varun Rishi used OPT to work as a postdoc after he got his PhD at the University of Florida: first at Virginia Tech and then, since October 2019, at the California Institute of Technology.

Source: Concerns about scientist immigration to the US have amplified during the COVID-19 pandemic

Trump’s Freeze On H-1B Work Visas Disproportionately Affects Indians

Given the number of articles I have been seeing in Indian media, not surprising:

The Trump administration’s latest freeze on certain types of work visas, designed to protect American jobs during the COVID-19 crisis, is having a disproportionate effect on workers in India.

The executive order, signed Monday by President Trump, extends a ban on green cards issued outside the United States and adds several types of work visas to the freeze, including the H-1B visa for skilled workers. Last year, 72% of those visas were granted to Indians.

The change means tens of thousands of Indians who planned to come to the U.S. this year will have to scrap or delay their plans.

On Tuesday, Sunny Kumar Hirpara awoke in India to news of a temporary ban on his exact type of visa.

“I woke up at like 5 o’clock in the morning, and I saw the messages. I almost started crying,” Hirpara says.

Hirpara, 26, earned a master’s degree in the U.S. and landed a job as an electrical engineer in Irvine, California. In March, he returned to India to visit his parents and to convert his student visa to an H-1B, sponsored by his company. Then the pandemic hit. His paperwork was delayed.

“I’m sad that I invested five years studying in the U.S. and preparing for a job there,” says Hirpara.

Last year, nearly 280,000 Indians were granted H-1B visas or renewed them. New ones are capped at 85,000 annually. The process is now frozen through Dec. 31, 2020.

In some cases, families separated by the pandemic now face more time apart. Social media is flooded with pleas to lawmakers from H-1B holders who temporarily left the U.S. and worry they won’t be allowed back.

Many have advanced degrees and work for U.S. tech giants. Google CEO Sundar Pichai tweeted that he’s “disappointed” by Trump’s order. He was once an H-1B recipient from India.

“We as a country have been such a vibrant economy and society because of our ability to draw talent from around the world,” Nisha Biswal, president of the U.S.-India Business Council, tells NPR. “If we stop, I think that will adversely impact our ability to be at the top.”

India’s IT industry association called the freeze “misguided & harmful” and urged the U.S. government to shorten restrictions to 90 days. Some Indian IT companies with employees in the U.S. will also be affected.

Others, though, suggest that the visa freeze could be a boon to Indian companies, and even to the government.

“This is a fantastic opportunity,” Vikram Ahuja, co-founder of Talent500, a recruitment firm in the southern Indian city of Bengaluru, told India’s NDTV channel. He said working from home — now common during the pandemic — could change how tech companies hire.

“The world is changing, and I think as long as great companies seek great talent, then location and physical proximity becomes irrelevant,” Ahuja said.

He said H-1B visa holders could even still work for U.S. companies, but from home in India — thus paying into Indian tax coffers instead of U.S. ones.

Source: Trump’s Freeze On H-1B Work Visas Disproportionately Affects Indians

As Donald Trump tightens immigration rules, Indian tech students ditch the American Dream for Canada

Yet another article of the shift with some interesting data:

Indian students are slowly getting over their fascination with the US.

The number of Indians enrolled in graduate-level computer science and engineering courses at American universities declined by more than 25% between 2016-’17 and 2018-’19, according to an analysis of government data by the National Foundation for American Policy.

The key factors for this decline are “more restrictive immigrationand international student policies under the [Donald] Trump administration and the difficulty of obtaining green cards in the United States,” the think tank focused on public policy research on trade and immigration said in a report published on June 8.

Data: National Foundation for American Policy, US Department of Homeland Security, US Immigration and Customs Enforcement, special tabulations (2018) of the Student and Exchange Visitor Information System (SEVIS) database via Quartz

This decline is a massive hit to the entire international tech student population in the US, as Indians form an outsized proportion of the group.

Data: National Foundation for American Policy, US Department of Homeland Security, US Immigration and Customs Enforcement, special tabulations (2018) of the Student and Exchange Visitor Information System (SEVIS) database via Quartz

America’s loss

In a letter dated June 2, 21 members of the US Congress highlighted that international students and their families contributed approximately $41 billion to the US economy in 2018-’19 alone, despite making up just 5.5% of overall US college enrollments. This cohort subsidises tuition for many domestic students.

Moreover, “as a source of research assistants, graduate students help professors conduct research and retain top faculty,” the National Foundation for American Policy report said. “Without the ability to perform high-level research, many leading professors would move on to other careers, which would weaken American universities as a global centre for science.”

While the US is losing out on Indian talent, its neighbour is making strides.

Canada’s gain

National Foundation for American Policy’s research shows that the share of Indian students in Canada more than doubled between the academic years 2016-’17 and 2018-’19.

Data: Canadian Bureau for International Education, National Foundation for American Policy via Quartz

Unlike America’s hardline approach, Canada’s policies have been incentivising students. In June 2018, Immigration, Refugees and Citizenship Canada announced the Student Direct Stream for China, India, Vietnam, and the Philippines. Students from these four countries enrolled in any of the 1,400-plus designated learning institutes in Canada can fast-track their applications, as long as they pass English-language tests and prove they are financially stable.

While the US has suspended immigration due to coronavirus outbreak and is reconsidering the post-graduate work programme Optional Practical Training, Canada isn’t letting Covid-19 get in its way.

As of May 14, international students with valid study permits in Canada from before March 18 have been exempted from the travel restrictions contingent on passing health checks and following isolation protocols.

Not just students but even Indian working professionals have been flocking to Canada as Trump’s anti-immigration rhetoric builds up. Several Indian techies have been swapping Silicon Valley for the more immigrant-friendly neighbour.

“Canada is benefiting from a diversion of young Indian tech workers from US destinations, largely because of the challenges of obtaining and renewing H-1B visas and finding a reliable route to US permanent residence,” said Peter Rekai, founder of the Toronto-based immigration law firm Rekai LLP. The country even offers express entry for skilled immigrants.

Moreover, Canada allows permanent residents to apply for citizenship after six years. Indian permanent residents admitted into the country jumped up over 117% between fiscal years 2016 and 2019, National Foundation for American Policy found.

Source: As Donald Trump tightens immigration rules, Indian tech students ditch the American Dream for Canada