The Insidious Attack on Business Immigration to the U.S.

By Kalpana V. Peddibhotla & Ameer Shaikh

Trump Administration Changes Business Immigration Overnight and Simultaneously Circumvents the Legislative Process.

This needs to be stated bluntly:  The Trump administration’s assault on immigrants is an assault on the viability and strength of American business. The immigration debate is often framed in humanistic and moral terms, and that posture remains essential; but immigration also has a massive economic component that enhances American strength. We are practitioners of business immigration law in Silicon Valley and are troubled by the short-sighted and business-killing policies coming out of the White House. These decisions, that have not received Congressional debate, and have occurred outside of public oversight, are hampering the expansion of the American economy.

It has been a mainstay of American business that immigrants make it stronger and make Americans richer. According to the Center for American Progress, more than 40 percent of Fortune 500 companies in 2010 were founded by immigrants or their children, and generated more than $1.7 trillion in revenue and employed 3.6 million people in the United States. Keep in mind these are 2010 numbers before Google and Microsoft got even bigger. Further, a study from the National Foundation for American Policy, a non-partisan think tank, shows that immigrants started more than half of the current crop of U.S.-based startups valued at $1 billion or more. These startups not only contribute massive amounts of taxes to the American economy but also provide good paying jobs to Americans.

Rather than nurturing this entrepreneurship, the Trump administration, beginning with the Executive Order, “Buy American, Hire American,” has introduced a series of orders which we believe will curtail innovation and introduce new and unwarranted hurdles to business immigration. We are detailing some of these hurdles here.

Worksite Enforcements

First, USCIS started with targeted worksite enforcements. While these enforcement actions seem innocuous since their stated purpose is to vet out fraud, in practical terms they primarily hurt smaller companies and start-ups who often do not have the infrastructure in place as expected for larger companies. As a result, an officer accustomed to a brick and mortar approach to businesses, are less forgiving of shared workspaces, remote work, businesses that don’t always operate from 9 to 5, and essentially the agile work environment that allowed Silicon Valley to flourish and gain tech dominance.

U.S. Consulates Abroad Re-Adjudicating Already Approved Petitions Through “221(g) Administrative Processing Notices”

U.S. employers have to overcome arduous regulations to get their immigrant petitions approved – often taking months and thousands of dollars in fees. Suddenly in response to the Trump Administration’s edicts, the American consulates abroad, which are primarily charged with vetting security threats, are re-adjudicating already approved USCIS petitions through the issuance of 221(g) Administrative Processing notices. This additional scrutiny means employers must wait several months for the talent, that they already took months to recruit, to be able to enter the U.S.

Furthermore, a key business executive or foreign worker whose visa in their passport has expired, despite having a valid petition approved by USCIS, may have to wait months to return to the U.S. should they make the decision to visit loved ones over the holidays as a result of this unprecedented scrutiny.

Advance Parole: Applicants can no longer travel until Applications are Approved

Besides visa traveling woes, USCIS has contributed to the uncertainty and anxiety of foreign nationals (and their employers), who are already in the Green Card queue and now want to travel but don’t have advance parole, despite having a valid H-1B or L-1 visa. In the past, the USCIS routinely approved advance parole applications where applicants traveled abroad during the pending period using an existing unexpired advance parole document, or H, K, L, or V visa. The USCIS Service Center Operation Directorate (SCOPS) confirmed that if a foreign national travels internationally while their Advance Parole application is pending they will deny that application. This effectively puts another strain on the mobility of foreign nationals during the final step before permanent residency.

In-Person Interviews for All Employment Based Immigrant Petitions

Pursuant to another Executive Order, USCIS has announced in-person interviews for all employment based immigrant petitions for permanent residence. While USCIS has always had the right to interview the Beneficiaries of employment based immigrant petitions for cause, this new policy is a dramatic departure from its prior policies. USCIS estimates that it will increase its workload by over 17% annually, which is especially significant given the long wait times employment based Green Card applicants already face – upwards of 10 years in many cases.

It’s also unclear how the interviews will serve the stated purpose of this executive order to “vet out foreign terrorists” since local USCIS officers would likely only be relying on biometric results, which they already do under the current application procedures. Moreover, employment based immigration petitions are very different from family based immigration where the U.S. petitioner is present at such interviews along with their foreign relative and personal questions are asked to establish those relationships. Here, the employers will not be present, so other than verifying the written statements on these petitions it’s hard to decipher how terrorists would be vetted by a USCIS officer, who is also not a terrorism expert.

The RFE Dump on H-1Bs

Then there is the way that H-1B adjudications have been taking this place in this year’s annual H-1B Cap. In March, just one month before the opening date for filing cap-subject H-1B Petitions, USCIS suspended premium processing of all H-1B petitions, sending employers into a mad rush to file in premium processing for H-1B transfer and extension cases. Within a couple of days of the opening date to file H-1B cap-subject petitions in early April, USCIS issued a statement that it would take the position that any petitions filed in the Computer Programmer Occupation Category, with Level 1 wages would unlikely qualify as a specialty occupation for H-1B purposes. And finally, as many immigration attorneys can attest to, USCIS has issued blanket Requests for Evidence (RFEs) on H-1B Cap petitions forcing companies to put forward even more information and spend more money to prove what their initial petitions sought to establish – that the positions they are hiring for are in a specialty occupation. While some degree of RFEs are expected, the large onslaught of RFEs this year raises concerns about whether USCIS is narrowly tailoring the requests for truly uncertain questions, or simply just wearing down employers so that they don’t file H-1B petitions!

These Unilateral Executive Actions Will Only Harm American Businesses

Immigrants play a significant and positive role in the U.S. economy.Key tech giants are led by immigrants – Google founder Sergey Brin, Yahoo founder Jerry Yang, and Microsoft CEO Satya Nadella, to name a few.  Despite the innovation that immigrants inspire, our country has failed to adopt a “Start Up Visa.” The Trump Administration claims to want to attract the best and the brightest, but rather than putting forward regulations for the Start-Up Parole Program introduced by the Obama Administration, it has put forward numerous barriers to business immigration.

Conventional politics hold that Republican Presidents are good for business. However, it is not hyperbolic to state that the current administration’s decision to hamstring American business by taking away its ability to attract the best of global talent is not too dissimilar from the government’s failure in the 1970’s to prevent American manufacturing from moving its factories abroad. The loss of manufacturing had a permanent effect on the American economy and led to the creation of the Rust Belt. We do not want a similar downturn for the United States in other parts of the economy.