Restrictions on the H-1B Visa Prompts Lawsuits and a Focus on Alternative Programs

Updated: Oct 23

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By Colleen Wright and Zachary Johnson, Ph.D.

www.profval.com, www.profval.org


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This paper is part of ProfVal’s Immigration Update Series, which is consistent with ProfVal’s goal of increasing transparency related to employment-based immigration. Papers in this series focus on issues that may be relevant to persons interested in employment-based visas and related issues. Unless otherwise noted, all quotes are based on publicly posted content made by the attorneys or firms quoted. There is no affiliation between ProfVal and these firms ProfVal does not offer legal advice; nothing within this document or on ProfVal.com should be construed as legal advice.



Recent measures will further scrutinize the H1-B visa program following President Trump’s June 22nd Presidential Proclamation, which suspended through 2020 the H1-B visa for many skilled workers along with certain other nonimmigrant, temporary work visas.[1] If you are applying for an H-1B, you may question whether these limitations apply to you.

Under the June 22nd order, foreign workers outside of the U.S. who do not have a nonimmigrant visa or other travel document valid June 24th or later, cannot obtain entrance under H-1B visas, H-2B visas, L visas for transfers within companies, and J visas for those participating in student and work exchanges.

“The Proclamation does not apply to anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State.”[2](Cyrus D. Mehta and Kaitlyn Box, Cyrus D. Mehta & Partners PLLC)

Although the proclamation cites pandemic-related unemployment rates as the reason for restricting foreign workers, misperceptions about foreign workers continue to drive policy decisions. Interestingly, foreign workers will likely play an important role in the economic recovery of the U.S.

“News of the order and its possible provisions has been swirling for months and the White House received letters and phone calls from universities, as well as those in the manufacturing, technology, and consulting industries, explaining that limiting these visas will hurt, not help, the economy because immigrants will be key to the turnaround,” write Michael Neifach and Amy Peck of Jackson Lewis P.C.[3] (Michael H. Neifach and Amy L. Peck, Jackson Lewis P.C.)

The H-1B visa is available to skilled workers with a bachelor’s degree, and often fills jobs in fields such as mathematics, engineering, technology and medical sciences. In order hire employees under H-1B visas, companies must first show that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.[4]

For this and other reasons, the legal community has been fighting this executive order.

“There are a number of lawsuits that were filed as recently as July 17th, that are attacking the legality of President Trump’s April 22nd executive order banning permanent legal immigration and his proclamation June 22nd banning temporary work visas such as the H1-B classification,” said Charles Foster, Chairman of Foster US & Global Immigration Services, in a televised interview July 26th.[5] (Charles Foster, Chairman of Foster US & Global Immigration Services.)

A lawsuit filed July 21st argues that one of the Proclamation’s true purposes is to shut down existing hiring practices for U.S. companies that rely on global talent. “This proclamation and its bar on the entries of certain nonimmigrants into the country greatly affected the U.S. business community,” writes Laura Foote Reiff of GreenbergTraurig.[6] (Laura Foote Reiff, Greenberg Traurig)

Most recently, employers of H1-B workers were the focus of a July 31st announcement that U.S. Citizenship and Immigration Services (USCIS) will now work with the Department of Labor to conduct “more robust examinations of employers’ use of H-1B workers than are ordinarily undertaken."[7]

“With DOL stepping into this new role, employers likely will see additional investigations and penalties for violations, including awards of back pay for wage errors,” write Michael Neifach and Amy Peck of Jackson Lewis P.C.[8] (Michael H. Neifach and Amy L. Peck, Jackson Lewis P.C.)

For the foreseeable future, it is expected that companies seeking to hire foreign workers on H-1Bs will continue to see challenges in addition to the most common reasons for being issued an RFE.

In light of the recent changes, focus is shifting to alternatives to the H1-B and other restricted visa programs.

· “While the H-1B may be the only option for many, it is important to consider and not overlook alternative visa categories when a foreign national worker holds Singaporean, Chilean, Australian, Mexican or Canadian citizenship. In addition to these alternatives, immigration counsel should also consider and present other possible visa options such as the E-1/E-2 (Treaty Trader/Investor) and O-1 (Extraordinary Ability) visa categories. These visa options may present a quicker and less stressful path for a foreign national to begin working in the U.S., especially because employers can continue to hire foreign nationals under these categories,” write Tiffany Change Wu and Mitch Wexler of Fragomen.[9] (Tiffany Change Wu and Mitch Wexler, Fragomen)

“The US consulate in Mexico City is processing O-1 visas for people from various nationalities with incredible efficiency, giving emergency appointments in 1-2 weeks and then turning around the visa stamping within the same day, in some cases within 1-2 hours. So one client booked an appointment 2 weeks ago and appeared there this morning and had his O-1 visa interview, where the application was approved and he was told the passport would be returned to him later today with visa stamped inside….We have seen this Mexico City option work now for multiple physicians who were looking for a solution to get from J-1 to O-1...” writes Robert Webber of Dorsey & Whitney LLP.[10](Robert Webber, Dorsey & Whitney LLP)

“When I discuss immigration options with prospective clients, I always discuss the possibilities for a client to obtain a green card. After a lengthy period in the USA, it is likely that the person and their family will want to remain in the country to which they have contributed their skills, paid taxes, bought homes and built a life. H-1Bs do not create a pathway to a green card, and it is up to the employer to decide to pursue a PERM-based green card for the H-1B visa holder. Current times call for safe measures, and green cards are likely the safest outcome for someone looking to move their family and uproot their careers to the USA,” writes Renata Castro of Castro Legal Group.[11] (Renata Castro, Castro Legal Group)

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REFERENCES 1 https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/) 2 http://blog.cyrusmehta.com/2020/06/therealthreattotheuseconomyistrumpsproclamation.html 3 https://www.jacksonlewis.com/publication/new-work-visas-suspended-under-presidential-proclamation-until-end-2020 4 https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet 5 https://www.click2houston.com/video/video/2020/07/26/us-immigration-laws-have-changed-while-eyes-were-on-pandemic-/ 6 https://www.gtlaw-insidebusinessimmigration.com/visas/june-22-immigration-proclamation-challenged-by-business-organizations-and-plaintiffs-in-new-lawsuit/ 7 https://www.dol.gov/newsroom/releases/dol/dol20200731 8 https://www.globalimmigrationblog.com/2020/08/h-1b-update-administration-to-increase-scrutiny-investigations/? 9 https://pages.fragomen.com/rs/130-CKI-333/images/Fragomen_Tiffany_Mitch_0805_Daily%20Journal.pdf 10 https://www.linkedin.com/posts/bobwebber_7132020-the-us-consulate-in-mexico-city-activity-6688482010794647552-kLtY/ 11. https://www.linkedin.com/pulse/let-trump-keep-looking-h-1bs-much-better-option-renata-castro-esq-/?trackingId=RN6%2BqXQDTF%2BsZd09K0S%2BtQ%3D%3D


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