Long-term H1B visa holders may be forced out of US by Trump

Comments by Sanwar Ali:

This may of course never happen.  We do not know.   It seems that there might be a plan to force out H1B visa holders, mainly Indians, who are working in the US while waiting for an approved employment based immigrant visa petition.   For Indians, due to the quota, processing times for a Green Card could be decades.   It seems the idea is that where there has been a lengthy delay in the processing of an employment based "Green Card", employers would be forced to apply for a second Labor Certification to show that they cannot find an American or Permanent Resident to do the job.

Presumably it is hoped that employers would either fail in the second labor certification application or would not bother.  Perhaps the Trump administration could also try and make it more difficult to succeed in a Labor Certification application.  If the second labor certification is not completed successfully the employee and family members will most likely have to eventually leave the US.

Is this legal?  Perhaps not.  Will Trump actually have the opportunity to try and put this into practice before the Presidential elections in November this year?  Many people think that Trump will not win a second term.  Biden seems to be doing better at the moment.  Obviously, we do not know.  Many people also thought that Trump would not win the first time round.  They were wrong.  If Trump is re-elected litigation relating to trying to impose a second labor certification requirement (assuming this ever happens) for certain immigrant visa applications could continue for years.

Just to remind everyone.  You can still gain entry on an E2 visa or O1 visa into the US without waiting for six months.  Only certain nationalities can apply under the E2 visa.  Not Indian or Chinese nationals unless they can gain entry as dependents or obtain another citizenship.  The O1 visa, unfortunately, is only suitable for a limited number of "top people".  You can also apply for other petitions such as the L1 visa and depending on the quota situation perhaps the H1B visa and H2B visa; you will however in most cases have to wait about six months before being able to work in the US.

Following his temporary ban on new, US work visa applications, Trump could potentially force out long-term H1B visa holders, according to a Forbes report. It’s rumoured that the US President has a plan to force foreign nationals who have waited years to secure an employment-based green card, to go through the ‘labor certification’ process again.

The plan, it’s hoped, will see many immigrants fail to succeed with their applications by having to go through labor certification. Many anti-immigration groups have pushed for the plan, which is likely to target Indian, Chinese and Filipino citizens, forcing them to exit the US in droves.

Critics of the plan have described it as the ‘deportation from America of many of the world’s most talented people.’

Uncertain whether plan to have a second labor certification will happen

For now, the plan is a rumour-only. However, the language used in the President’s most recent proclamation suggests that it’s possible.

As quoted by Forbes, section 5 of Trump’s latest executive order states:

“The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB2 or EB3 immigrant visa or an H1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1)).”

Section 212(a)(5)(A) is specific to ‘labor certification’ in the Immigration and Nationality Act.

In accordance with sponsorship rules for employment-based visas, often referred to as green cards, the sponsor much first secure labor certification for a foreign national.

Labor certification requirements

Labor certification is a Department of Labor mandated process and requires employers to pay for advertising and review CVs in respect of a vacancy to show that they cannot find someone else to do the job.

In accordance with US law, labor certification:

“Identifies that there is an insufficient number of workers who are able, willing and qualified (or equally qualified in the case of an alien described in clause (ii) [teachers and people of exceptional ability in the sciences or the arts]) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor.”

Upon securing labor certification, with a 180-day timeframe, an employer is then able to file Form I-140 with United States Citizenship and Immigration Services (USCIS) to petition for the non-US worker.

If a green card is unavailable, due to a backlog, under current rules it’s possible for an H1B visa holder to remain in the US and work while waiting for their visa.

Congress acknowledges that retaining top talent from overseas is important, and allowed professionals to work beyond 6 years under the H1B visa program by securing a visa extension if a non-US worker was still waiting for a green card.

Green card limits means Indians waiting many years

Non-US nationals awaiting a green card face many years or even decades of waiting. The annual limit for the number of green cards issued is 140,000, which is low compared to the demand. This is further restricted because of a per country limit. Indians, for example, face a wait of more than 10 years to secure a green card.

The plan that’s hinted at in the latest proclamation, and by anti-immigration groups, hopes to eliminate the backlog by putting immigrants through labor certification processing because it’s possible many would not pass.

According to the Forbes report, as of November 2019, there are more than 350,000 Indian professionals with approved I-140 petitions with a further 357,000 dependents – all of whom are on the green card backlog list.

Meanwhile, 38,000 Chinese nationals and 5,000 Filipino skilled workers are also on the list. Should the Trump administration amend the rules and subject the majority of these individuals to the labor certification process again – with new criteria to meet targeting the elimination of these workers – it’s highly likely many would be unsuccessful.

Per-country immigrant visa limit

With Congress failing to pass legislation that would end the per-country limit on green cards, Indian scientists and engineers in particular – along with their dependants – are vulnerable to the bureaucracy of the US visa and immigration system under the Trump administration.

Those opposed to the plan have pointed out that within the American Competitiveness in the 21st Century Act, passed in 2000, Congress included specific provisions to protect workers who went through labor certification while continuing to remain in the US and work while awaiting an immigrant visa.

Under current rules, if an application for an adjustment of status has been submitted, employers are permitted to file for an extension for H1B visa holders to stay beyond 6 years, provided that 365 days have passed since a labor certification was filed on an ‘alien’s’ behalf or a petition is filed in accordance with section 204(b).

Anti-immigration officials ‘hopeful’

There’s ‘hope’ among anti-immigration officials serving within the Trump administration that the economic downturn caused by the coronavirus pandemic will result in a mass exodus of highly skilled Indians, Chinese and Filipinos.

However, analysts believe that such a plan will ‘devastate’ US companies and America risks losing top talent to the likes of Canada, Australia, the UK and more.

Meanwhile, America’s reputation as a hub for innovation and developing the world’s best talent would be ‘left in ruins.’

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