In the last four years, the Trump administration enacted more than 400 regulatory actions through its executive power. The arrival of the Covid-19 pandemic in early 2020 gave the Trump administration new openings to push forward many of its remaining immigration policy aims.
This period has seen bans on travel and a pause on visa issuance for certain groups of foreign nationals and closing off of the U.S.-Mexico border that has effectively ended asylum there. Recently the H-1B program also evidenced rules to increase wage levels and processing fees along with the levy of public law fee, strengthen adjudication/enforcement priorities and shift to merit/ wage based selection from the lottery system for H-1B cap selections. Some of the major impacts of these regulatory actions are as follows:
1. Increase in the number of immigrants in the U.S. has slowed down as compared to previous years.
2. While there was an increase in the issuance of temporary visas by the U.S. immigration department, there was a decline coupled with delays in the issuance of a permanent visa.
3. Fall in the number of refugees admitted to the U.S.A.
4. Increase in number of detentions at the U.S.-Mexico border.
5. Immediate increase in the prevailing wages associated with each wage level by 30% to 40% for H-1B, H-1B1, and E-3 visas, and the wages associated with the permanent employment-based programs, due to rules announced in Interim Final Rule (IFR) announced by Department of Labor (DOL) on October 8, 2020.
6. Potential increase in request for evidence and rejections in H-1B visas due to rules announced in Interim Final Rule (IFR) by Department of Homeland Security (DHS) on October 8, 2020 to strengthen the H-1B program.
While some of the changes introduced under the Trump administration may have a long-lasting impact on the US immigration system, Biden’s election campaign specified implementation of the following ten aspects to reverse policies formulated under the Trump administration:
1. A roadmap to citizenship for nearly 11 million people who have been living in the U.S.
2. Reforms to the visa program for temporary workers in select industries.
3. Reforms to the temporary visa system.
4. A path to legalisation for agricultural workers.
5. Rejection of false choice between employment-based and family-based immigration.
6. Preferences for diversity in the current system.
7. Increased number of visas offered for permanent, work-based immigration based on macroeconomic conditions.
8. Stronger enforcement of immigration rules on employers.
9. Protections for undocumented immigrants who report labor violations.
10. Increased visas for domestic violence survivors.
Over the last few months, the Trump administration’s decision to temporarily suspend the H-1B visa program and introduction of the interim final rule by the Department of Labour and Department of Homeland Security negatively impacted several large American companies.
Various business corporations, especially technology companies, headquartered in India and the U.S.A., underwent several strategic introspections, especially in light of changes introduced to the H-1B program. These are the companies that experienced a negative shock as they heavily rely on having high-skilled labor available to them. The leadership of various organizations consequently had to evaluate business viability.
While companies have longer-term options available to them, namely, offshoring, the immediate consequences of these immigration policies itself have resulted in a high negative impact on companies.
Currently, the number of employment-based visas, including the H-1B, is capped at 140,000 a year. The Biden administration has proposed to increase the number of high-skilled visas, including the H-1B, and eliminate the limit on employment-based visas by country. The Biden administration also plans to create a new visa category to allow cities and counties to petition for higher levels of immigrants to support their growth and to reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labour market and not used to undermine wages.
In theory, presidential proclamations and executive orders can be rescinded by the new president; however, in many cases, the change will not be immediate since guidance, rules, and manuals need to be updated. Policies that were changed through regulations will likely require new regulations and a new public comment period.
Considering the waiting period for new immigration changes and the second wave of the pandemic in various parts of the world, corporates may have to continue pursuing suitable manpower strategies to sustain business opportunities and manage manpower requirements.
The author is partner, Global Compliance Solution Leader, EY. The article has been written with inputs from Lakshmi Rangarajan, senior manager, EY.
