Immigration attorneys in Miami have expressed concern about possible plans by President Donald Trump’s administration to seek changes in visas for foreign nationals who travel to the United States for business, who are transferred to a U.S. affiliate or subsidiary or who have been hired by American companies or have enrolled as students in U.S. universities.
The concern expressed by two attorneys who specialize in business and student visas stems from a draft executive order now circulating in Washington that would prompt a review of various types of visas foreign nationals use to enter the United States as visitors for business, to invest in and manage enterprises under treaty accords or to work in companies for an extended period as staff employees or as workers in an American affiliate or subsidiary of a foreign firm. At least two other types of business-related visas would also be reviewed under the draft order: those used by temporary agricultural workers and those reserved for university students.
Discussion of the leaked draft order comes at a time of heightened public interest in immigration in the wake of a series of executive orders Trump has signed since taking office Jan. 20 — all designed to restrict the movements and activities of certain foreign nationals, both legal and undocumented.
Last Tuesday, for example, the Department of Homeland Security unveiled new policies that allow federal immigration agents to detain and process for possible deportation virtually any foreign national who has been convicted of a crime, charged with a crime or suspected of having committed a crime.
The Miami immigration attorneys interviewed for this article said their analysis of the draft order indicates that Trump and aides want to restrict the entry of business travelers in a bid to protect the jobs of U.S. workers, including American citizens and green-card holders. Such restrictions, the attorneys said, could have a devastating impact on the American economy.
“In the name of making America great again, they’re going to damage U.S. companies and make them so they can’t compete with foreign-owned companies,” said Tammy Fox-Isicoff, one of the two prominent immigration attorneys interviewed. She said she was in contact with experts who are advisers to the Trump transition team on immigration.
The other immigration attorney, Jordana Hart, said the draft order also would wreak havoc with the studies and training of foreign nationals in American universities studying science, technology, engineering and mathematics — the so-called STEM fields.
“The draft order would further narrow an already very narrow path for all of these students,” Hart said.
The draft order is titled Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.
In a preamble, it says the reason for the order is to ensure that immigration policies are “designed and implemented to serve, first and foremost, the U.S. national interest,” and shield the “civil rights of American workers and current lawful residents.”
Then the draft order enumerates the various business and worker visas Homeland Security would review: B-1 for temporary business visitors; E-2 for foreign nationals traveling under commerce and navigation treaties to manage enterprises in which they have invested; H-1B, for foreign national professional workers in various businesses including the tech industry, engineering firms or companies in the financial sector, among other specialty occupations; H-2A, for temporary agricultural workers; L1 for intra-company transferees; as well as visas for foreign students.
It requests the review of the visas within 90 days of the order being signed.
In one of the passages that troubled the attorneys, the draft order proposes to “terminate all existing parole policies” that favor “entire classes of foreign nationals who do not qualify for admission under existing immigration categories.”
Fox-Isicoff and Hart said the proposed change could disrupt the travel and work of many visa holders who receive parole documents while awaiting green cards.
“It would stop all business, it would stop all travel,” Fox-Isicoff said. “That’s a very serious impediment for business. This alone would cripple U.S. businesses.”
Hart echoed those concerns.
“The question is, how long does it take to get your green card?” she wondered. “It could be seven or eight months. It could take over a year, and if there’s a problem, it could take years.”
Next comes a proposed modification to the process of allocating H-1B visas by making it “more efficient and ensure that beneficiaries of the program are the best and the brightest.”
Both attorneys said the language is misleading because the requirement may be a way to restrict the issuance of the visas to fewer people.
Though the draft order does not mention proposed salaries for H-1B visa holders, Fox-Isicoff and Hart said some federal lawmakers would require that companies pay a minimum of $80,000 or $100,000 to H-1B hires. They note, for example, that the prevailing wage for dairy scientists, some of whom get H-1Bs, is $35,000 a year.
“Are they going to pay $100,000?” Fox-Isicoff said. “There are school districts with a serious teacher shortage, and those professionals get paid the union wage. Requiring a minimum well above the union wage would effectively preclude school districts from getting these visas.”
Both Fox-Isicoff and Hart acknowledged that concerns about foreign H-1B workers stem from a perception that they take away jobs from Americans, and that some have been hired to replace U.S. employees because their pay is lower. But the attorneys said those concerns are misplaced because the law actually requires that H-1B workers receive the higher end of the actual wage paid to other U.S. workers in similar jobs with similar experience.
“Are there H abuses?” Fox-Isicoff said. “Everybody will tell you there are H abuses. But let’s just say that 5 percent of the Hs have abuses, and that would be a high number, and if we take that 5 percent times .00025, we’re looking at .000025. It’s a statistically insignificant number. It’s like a needle in a haystack. Of course, if you scream loud enough, somebody is going to hear you. But does it make it worse if you scream loud? H visas are still .0005 of the U.S. workforce, a scintilla of the U.S. workforce.”
A recent article in the Wall Street Journal said the tech industry relies heavily on H-1B workers.
“Nearly two thirds of the H-1B positions certified by the Labor Department in fiscal 2016 were in tech-related fields,” according to the story. “These visas are controversial because U.S. companies often employ these types of services to replace their own employees with lower-paid, outsourced positions.”
The draft order does not mention outsourcing, but Fox-Isicoff said the practice can be curbed for abuse.
“One of the things I propose is that we limit outsourcing for H-1Bs,” Fox-Isicoff said.
Another area of concern for the attorneys is a reference to practical training for foreign students in U.S. universities. The draft order proposes “a regulation that would reform practical training programs for foreign students to prevent disadvantaging of U.S. students.”
After their studies end, foreign students normally get 12 months of practical training. Those in the STEM fields get three years.
Both Hart and Fox-Isicoff said they believe the draft order seeks the termination of this training work authorization.
“One of the reasons why students go to school here is, No. 1, we have a renowned good education system, university, not high school,” Fox-Isicoff said. “The other reason is that students get practical training at the end of their studies.”
She added: “Foreign students are important to our educational system. “They provide diversity and expose U.S. students to the world, and they pay full tuition and subsidize, in effect, the education of many U.S. students.”