‘Potential legal loophole’ in Trump H-1B ban, says immigration lawyer Sheela Murthy

While immigration remains a burning issue in almost every American presidency, the latest proclamation has additional significance for coming less than five months before the next presidential election

June 29, 2020 06:01 pm | Updated November 28, 2021 12:18 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, a policy that his administration has consistently prioritised. While the halt in visa issuance includes several categories of applicants, the broadest impact may be felt on those skilled workers abroad seeking the H-1B visa — in large part granted to Indian nationals each year. While immigration remains a burning issue in almost every American presidency, the latest proclamation has additional significance for coming less than five months before the next presidential election. Is this a meaningful attempt to shore up the precarious U.S. economy, or purely a campaign play to improve Mr. Trump’s odds of victory in November? Narayan Lakshman caught up with Sheela Murthy , founder of the Murthy Law Firm specialising in immigration cases and based out of Maryland, U.S., to discuss the impact of the Trump administration’s policies on immigration.

The politics of Trump's H-1B ban and a potential legal loophole | In Focus podcast

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. Some it hasn’t come to pass and some of it has. To some extent there is a consistency in the theme of being anti-immigrant, or focusing on immigrant-bashing, as if immigrants are responsible for all of the problems of America. This is very ironic considering we are a nation of immigrants, and pretty much everybody, except Native Americans, came from somewhere else.

So, there’s consistency in this policy area, but it’s continued to grow. Now, with COVID-19 playing a big role, combined with movements campaigning for women’s rights and racial equality, his legacy will now include his response to all of these forces.

Also read: Downing the shutters: On H1-B visa halt

In the specific case of this proclamation, do you think the impact is going to be severe on those in the H-1B visa category? Have you come across cases where people are already 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 21 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, who have been stuck there since late March. India shut its airspace to commercial flights around that time. In the U.S. in his April 22 proclamation, Trump targeted immigrant visas of those stuck abroad trying to come to the U.S. as green card holders, primarily family-based immigration.

They did say at the time that within 60 days they planned to release a policy measure that would impact non-immigrant workers. The saddest impact of this has been on those who are stuck because they cannot re-enter due to a combination of factors including commercial flights not being as easily available and now this proclamation. They may be unable to return to the U.S. at least until December 31, 2020. In the proclamation, the Trump administration has said it reserves the right to extend this visa issuance ban beyond this date, if circumstances so warrant.

Also read: The Hindu Explains | How will the U.S. visa ban impact India?

Do you think that from the April to the June proclamation, the motive has shifted from a broad immigration crackdown to specifically targeting U.S. jobs, protecting them from being taken by foreign nationals? Is the motive also political, in terms of the 2020 presidential 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 we are actually going to regress. It is not going to create jobs, but it is actually going to take away jobs and make things worse. Politically neutral research organisations, which are neither pro- or anti-immigration, have been very concerned with a lot of what has been going on over the past few years. But this proclamation is really nonsensical economically. In the U.S. labour market, this proclamation does not help create jobs, increase wages for workers or improve their working conditions.

Corporate CEOs including from Silicon Valley, such as Google’s Sundar Pichai and Tesla’s Elon Musk, have talked about this explicitly in recent days, broadly echoing the view that this policy does not tie in with their companies’ ethos or hiring strategies, and that they do rely on skilled immigrant workers from abroad. Do you think there is going to be a pushback, both in terms of quiet lobbying efforts by corporate America, or indeed through lawsuits filed?

I think there will be lawsuits, just as there are 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. 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.

What can any employer, a business or a company, do when there is a presidential executive order other than challenge it legally? The reason that the President of the U.S. enjoys such vast powers is because of a particular section of the Immigration and Nationality Act that allows them to impose restrictions on the entry of foreign nationals in this country. This was originally intended for use in a national emergency, to protect the life and safety of Americans.

The administration’s ban on entry of persons into the U.S. in the context of COVID-19 was itself ludicrous to some extent because we’re having bigger problems on that front in the U.S. itself. Extending this to H-1B, L-1 and their dependents only impacts a miniscule number of jobs, in terms of those who went abroad and got stuck. So, other than making this a big brouhaha, perhaps to show that his administration is doing so much, in reality Trump’s proclamation has at most a small effect on jobs, and that too a questionable effect given that the H-1B helps create jobs.

Hypothetically, if Mr. Trump wins in November, is it not possible that his new administration would extend this visa issuance ban beyond December 31, 2020, to make a point about immigration? Wouldn’t the impact on job protection be greater in that case?

First, a point of clarification: the prior proclamation on legal immigration, which was issued for 60 days originally, has now been extended until December 31, 2020, so it is a total of 60 days plus six months — around eight months total. The second proclamation will be valid for around six months.

With regard to the impact on Indian nationals and new visas: as I mentioned with regard to current H-1B visas and those who are in the U.S. already, it is not a problem. A large number of those who file for H-1B visas are those who have done a U.S. master’s or bachelor’s degree. In fact, 20,000 of the H-1B visas issued are for those who have completed a U.S. master’s degree from a non-profit public university. A chunk of the remaining 65,000 visas also goes to U.S. graduates, and the rest to foreign nationals from all over the world. Indians are the primary users of the visas in this category.

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.

Between such applicants, those stuck abroad without a visa stamp and those who have a H-1B visa and can enter, there are many moving parts here.

Thinking of large Indian IT companies such as the Tatas and Infosys, they probably have ongoing commercial relationships with U.S. corporations, perhaps specific projects that they are working on already. For these projects they may need to bring in skilled workers on the H-1B visa. Would that be impacted by this ban, which if extended could lead to a halt in new hires that need these visas? In turn, wouldn’t this have a knock-on effect on bilateral trade in services?

Absolutely. Those would be the immediately impacted sectors, to the extent that these parts of the Indian economy rely on this sort of bilateral trade and the movement of highly technical and skilled workers. It is not just H-1B visa applications that will be affected but also those using the L-1 visa to avoid the caps and quotas of the H-1B visa.

We are very aware that Americans located all over the world are probably going to have to incur and deal with the wrath of countries across the world that are going to be impacted by these anti-immigration trade proclamations. In that sense, the impact that American policy will have will probably far exceed the protectionist approach of the U.S. government.

We have in recent days seen polls suggesting that Mr. Trump’s Democratic rival, former Vice-President Joe Biden, is in the lead in the presidential election in November. If Mr. Biden wins, would the Democratic Party’s approach to immigration, particularly with regard to visas for skilled workers, any different from the Republican Party’s policies?

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. Under the Obama administration there were a lot more restrictions in terms of immigration investigations, for example involving the Fraud Detection and National Security Directorate. But that was a focus even prior to Mr. Obama’s time in office, and it goes back at least to the George W. Bush administration, nearly 20 years.

I don’t know that Joe Biden would seek to completely re-shape immigration the way the Trump administration has looked at it. I have been practising law and immigration law for approximately 30 years and no U.S. president in history has been this obviously anti-immigrant. Mr. Biden couldn’t possibly be much worse than the Trump administration in this regard.

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