‘Trump’s H-1B ban has nothing to do with saving American jobs’

U.S.-based immigration lawyer says there may be a potential legal loophole in the administration’s visa restrictions, imposed earlier this month through an order

June 29, 2020 10:56 pm | Updated June 30, 2020 04:28 pm IST

Research has shown that for the biggest tech companies, bringing in high-skill individuals can actually boost the economy, says Sheela Murthy.

Research has shown that for the biggest tech companies, bringing in high-skill individuals can actually boost the economy, says Sheela Murthy.

On June 22, the White House made a proclamation restricting the issuance of non-immigrant work visas across the board, which U.S. President Donald Trump said was to clamp down on American jobs going to foreign workers. The broadest impact may be felt on skilled workers abroad seeking the H-1B visa — in large part granted to Indian nationals each year. In an interview with The Hindu , Sheela Murthy, founder of the Murthy Law Firm specialising in immigration cases and based out of Maryland, U.S., discusses the impact of President Trump’s decision on the economy and immigration. Edited excerpts:

What is your sense of the long arc of the Trump administration’s immigration policy, starting from 2016?

To some extent, it is just an evolutionary process. Even before he became President, candidate Trump talked about how he was probably going to go after immigrants and immigration, although he did not let the cat out of the bag over H-1B or professional workers. He talked about building the wall, about preventing people who broke U.S. law from coming into the country. But as soon as he got elected, his focus was on the travel ban [on visitors from certain Muslim-majority countries] around January 2017, on various executive orders, renewed focus on building the wall, threatening to cut off Employment Authorisation Documents.

What is the impact of this proclamation on those in the H-1B visa category, and have you come across cases of people facing hardships?

Those who have H-1B visas or are seeking them from within the U.S. and filing for extensions or amendments won’t be affected by the June 22 proclamation. But it will exacerbate the problem for those who may have travelled abroad, perhaps for a brief vacation or because of a family emergency, such as a parent being unwell, and who have been stuck there since late March.

India shut its airspace to commercial flights around that time.

In his April 22 proclamation, Mr. Trump targeted immigrant visas of those stuck abroad trying to come to the U.S. as green card holders, primarily family-based immigration. They may be unable to return to the U.S. at least until December 31, 2020. In the proclamation, the Trump administration has said that it reserves the right to extend this visa issuance ban beyond this date, if circumstances so warrant.

Is this move genuinely about a broad immigration crackdown to protect U.S. jobs from foreign nationals or is the motive political, in the context of the election campaign?

Yes, they are using the COVID-19 pandemic and its economic impact to focus on their political agenda. This has nothing to do with saving American jobs. Research has shown that for the biggest tech companies and other corporations that are major income producers, the H-1B visa helps to create jobs for American workers, that bringing in high-skill individuals can actually boost the U.S. economy. In that climate, to pander to those people who are not necessarily the most highly educated or possess the highest technical skills is bad, because it is not going to create jobs, but actually take away jobs.

Corporate CEOs including Google’s Sundar Pichai and Tesla’s Elon Musk have criticised the proclamation recently. Will there be a pushback from corporate America, through lobbying or lawsuits?

I think there will be lawsuits, just as there with most of the immigration-related executive orders so far, including the travel ban, building the wall, and family separations at the border. It makes even less sense, for example, if an H-4 visa holder, a spouse of an H-1B visa holder, who does not work in the U.S. and went to India for what they thought would be a short vacation are now stuck for nine months, separated from their families in the U.S.

Such a person has zero impact in terms of taking away a U.S. job. These are the kinds of lawsuits that would win fairly easily. But lawsuits take time, effort and money. Organisations such as the American Civil Liberties Union have been filing these lawsuits pro bono or at a reduced fee.

If Mr. Trump wins and extends the visa issuance ban beyond December 31, 2020, wouldn’t the impact on jobs be greater?

With regard to current H-1B visas and those who are in the U.S. already, it is not a problem. Most of the current H-1B petitions would not anyway be effective until October 1, 2020, which is the start of the fiscal year 2020-21 for the U.S. Customs and Immigration Service. If some of these applicants happen to be abroad, they are not going to get the visas to travel to the U.S. on H-1B status.

On the other hand, if some of those people have other visas, let’s say tourist visas, the way the proclamation is written, for them there may be a potential legal loophole to enter the U.S. on that visa and attend meetings or travel on vacation as per the visa requirements, and within the legal time frame necessary to avoid fraud allegations, file for a change of status within the U.S. legally, to switch from their existing visa to H-1B. Then they would be able to start work based on the prior H-1B approval.

If Joe Biden wins the election, will the immigration policy look very different from what it is under Mr. Trump?

Historically, Republicans are supposed to be far more pro-business and Democrats, strangely, more protectionist. We’re seeing a little bit of a reversal here because the Trump administration has been focused on being protectionist in many ways, under the guise of helping U.S. workers. Joe Biden has not come out strongly with respect to an immigration policy, but having been the Vice-President under Barack Obama, the general view has been that he would continue some of the policy thinking of that administration. I don’t know that Joe Biden would seek to completely reshape immigration the way the Trump administration has looked at it.

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