Tag Archive for: Stephen Miller

Cyrus Mehta

Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected

/0 Comments/in /by

By Cyrus D. Mehta

If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States.

“The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II, ” Balko states.

According to New York Times’s columnist Jamelle Bouie in  Trump’s Taste for Tyranny Finds a Target immigrants would be the most easy target for Trump to play out his autocratic fantasies. Trump has already said that undocumented immigrants are “poisoning the blood of this country.” The Supreme Court in Trump v. Hawaii allowed Trump to enforce his Muslim ban.

Stephen Miller, the architect of Trump’s anti-immigrant policies,  has stated on Charlie Kirk’s show how this deportation force would fulfill Trump’s fantasy. The  deportation force would comprise agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. They would look all over the  country for unauthorized and undocumented immigrants moving from state to state, city to city, neighborhood to neighborhood and, finally, house to house. These are people who in the view of Trump and Miller do not belong, not that because are not authorized but because they are also nonwhite and who are from what Trump once called “shithole” countries. By raiding workplaces and staging public roundups, this deportation force would create a climate of fear and intimidation.

Mistakes are bound to happen as legal immigrants and even US citizens may get caught up in the roundups. There could not be any notion of selective enforcement in these roundups, and those caught up in them would be because they appeared to be immigrants. There would be mass racial and ethnic profiling. And by the time this gets sorted out it may be too late if the person already got deported.

Moreover, one thinks of an undocumented immigrants as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year. All these noncitizens would be lumped together as undocumented immigrants that would be red meat for Trump’s deportation force.

Since it would be beyond the capacity to quickly deport the people caught up in these roundups, especially since countries may not even be willing to accept them easily, there would be holding facilities that would serve as staging centers on land near the Texas border. This would not be too dissimilar from internment camps, which were set up in the United States to detain Japanese Americans after the attack by the Japanese military on Pearl Harbor in 1941.

In addition to the round ups, the second Trump administration would sign an executive order to withhold passports, social security numbers and other government benefits from  children born of undocumented immigrants in the United States never mind that the Fourteenth Amendment says the exact opposite. Under Trump’s deportation plan, there would be no distinction between undocumented immigrants and children born to an undocumented immigrant in the United States. If there are going to be protests and resistance from people against agents storming homes, schools and religious places, Trump will invoke the Insurrection Act to mobilize the miliary and crush the resisters as well as his political opponents.

According to Bouie, “what we are seeing here from Trump isn’t simply a distaste for liberal values; it is a taste for genuine tyranny and bona fide despotism, one that complements his endless praise for dictators and strongmen.” Trump has already likened immigrants to invaders, and he can invoke an emergency, and thus a constitutional crisis,  to go ahead with deportations without waiting for the courts to rule, and  when they do rule, Trump’s hope is that the courts will rule in his favor, especially the Supreme Court, which have historically given deference to the executive branch on matters involving national security. This has happened time and time again with respect to court challenges to the internment of Japanese Americans, against the unlawful detention and abuses of noncitizens after the September 11 attacks and most recently in allowing Trump’s travel ban to pass, which was a major part of his election campaign in 2016 to ban Muslims from coming to the US, and in this reelection campaign for 2024, Trump promises to create a tyrannical force to deport millions of immigrants.

On this Memorial Day, as we reflect upon the sacrifices our military personnel have made to free America and the world from fascism and tyranny, think about how Trump can so easily unravel all of this through a deportation force that rips families apart, tears lives and fractures America.

 

Cyrus Mehta

Trump’s Work Visa Ban Causing Havoc to Families including Children

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

On June 29th, 2020, issued a Proclamation to amend Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak).

The amended Proclamation modifies Section 3(a)(ii) of the June 22 Proclamation to read as follows:

“(ii)   does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and”

In the June 22 Proclamation, Section 3(a)(ii) had read as:

“(ii)   does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and”

Under the language of the original provision (see The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans), having a valid visa of any category was sufficient to exempt an individual from the Proclamation. The amendment renders the Proclamation even more restrictive, specifying that the visa must be a valid H-1B, H-2B, L, or certain J visas, and that the individual must be entering the United States pursuant to that visa to qualify for an exemption.

This amendment will cause irreparable harm to countless individuals who relied on the language of the original Proclamation to their detriment. Interpreting the original provision, an individual with a valid B-2 visa, for example, may have assumed that they were exempt from the Proclamation, and chosen not to return to the United States by June 24th. Now, trapped by the administration’s sudden narrowing of the exemption, that individual is stuck outside the United States. Further, individuals who had a valid H-1B, H-2B, L or J visa on the effective date of the original Proclamation (June 24, 2020), may not, based on a literal reading of the amended section, be able to get a new visa when their old one expires if they were outside the United States on June 24th, 2020.

Already, the Proclamation is resulting in irreparable harm and separated families. The Washington Post told the poignant story of Vihaan, a young boy who traveled to India with his mother in February to visit a seriously ill relative. First unable to return to the United States due to the pandemic, and now ensnared by the amended Proclamation, Vihaan and his mother are separated from Vihaan’s father and their home in Dallas, Texas, for the foreseeable future. Many other families, some of whom have lived in the United States for years, find themselves in the same situation.

The Proclamation has been the source of other points of confusion, as well. Some immigration lawyers have questioned whether individuals who were in the United States on the effective date of the Proclamation and, thus, exempt, could be impacted by the Proclamation if they travel internationally. On Twitter, the State Department seemed to confirm that an individual in this situation could become subject to the ban, stating: “If you depart the US, you need a valid visa to return and we will not be issuing H-1B, H-2B, L, or certain J visas, and derivatives through Dec 31 unless there’s an exception”. Aside from the devastating impact that the amended Proclamation will have on individuals who are stranded overseas or unable to travel, it will also cause irreparable harm to U.S. businesses who have employees stuck outside the United States and unable to perform the jobs they were hired to do, or are unable to travel for business.

This Proclamation, along with the harsher amendment, do very little to achieve their stated goal of protecting jobs for American workers. As our colleague Jeffrey Gorsky noted, the Proclamations ban some individuals who are not even able to work in the United States and pose no threat to the labor market, including spouses of H-1B workers, many of whom are not eligible for employment authorization, and spouses of H-2B workers and children, who are never eligible for employment authorization. They have the perverse effect of banning a new born child too. Gorsky notes that a mother could have a valid L-1 visa  on June 24 and is thus not banned, but if she gives birth to a child after June 24, 2020, this hapless child  will be banned for not having a valid visa on June 24, 2020. We argued in our prior blog that family members, such as this child, who are accompanying or following to join a nonimmigrant whose entry has not been suspended should be permitted to obtain a dependent visa. Unfortunately, those in charge of implementing the Proclamations in the Trump administration, such as arch xenophobe Stephen Miller, are more concerned about keeping out nonimmigrants (including babies) to the maximum extent possible under the guise of protecting American jobs.  Unless a court intervenes, the Proclamations will cause irreparable harm to individuals who may have been living and working in the United States for years,  the U.S. businesses that employ them as well as cause further damage America’s reputation in the eyes of the world.

 

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Building the Legal Case to Challenge Trump’s Immigration Ban

/0 Comments/in /by

President Trump’s latest Proclamation  is a brazen attempt to rewrite US immigration laws under the guise of protecting Americans during the COVID-19 pandemic. The Proclamation bans most noncitizens who will enter the United States as immigrants for 60 days from April 23, 2020.  Confirming the sham, Senior White House adviser Stephen Miller, according to a leaked private conference call recording, told supporters that Trump’s order to suspend immigration is part of a larger strategy to reduce overall immigration.  He said that “the most important thing is to turn off the faucet of new immigration labor” and that the temporary ban would limit “chains of follow-on migration.”

Following my initial reaction to the Proclamation, in this blog I point out all its inherent contradictions to make the case that it is legally infirm and is vulnerable to challenges in court.

Although the Proclamation purports to halt permanent immigration for 60 days it leaves open the possibility of revaluation on day 50 and extending the ban. The Proclamation also leaves open the possibility of introducing other measures possibly impacting the H-1B and L visa programs. There are indications that the administration will extend the Proclamation to also limit temporary work visas as well. A draft of another version of the order would have banned noncitizens seeking entry on B, H, E, J, L and O visas, and so it would not be unexpected if the ban is eventually extended to nonimmigrant visa entrants. It is ironic  that even immigration restrictionists are critical of the Proclamation as it does not go far enough, and so they will continue to exert pressure to extend the order and expand the restrictions.

Paradoxically, the Proclamation places green card holders on a lower pedestal than temporary workers tied to an employer under a pseudo economic theory that there is no way to protect Americans from the threat of competition from newly minted green card holders who can seek jobs in any sector. This false assumption is made even though some of the would be immigrants who have been banned were sponsored by employers because of their skills and who tested the US labor market for American workers prior to filing a green card application on their behalf. The Proclamation further cruelly blocks spouses and children of green card holders and even those who have won approvals based on their extraordinary ability or for being outstanding professors or researchers. Spouses and minor children of US citizens are exempted and so are physicians and nurses, along with others coming to perform work related to COVID-19.

But these exceptions are small crumbs to make it seem that the ban has a rationale, although this is clearly not so. The idea that a 60 day pause on permanent immigration will improve the unemployment situation in the US is farcical especially in light of the leaked Miller call that this is part of the administration’s long term strategy to lower immigration levels.  An editorial from of the Wall Street Journal published the day before the Proclamation was promulgated makes a compelling case that immigrants do not take away jobs, and it is in fact the reverse. Below is an extract:

Nearly all of the economic evidence shows that immigrants enhance American growth and jobs. Former Federal Reserve economist Madeline Zavodny, now at the University of North Florida, examined state employment levels and immigration for the National Foundation for American Policy in 2018. States with surges of immigration like Texas and Iowa had low jobless rates. “Having more immigrants reduces the unemployment rate and raises the labor force participation rate of U.S. natives within the same sex and education group,” she found.

Rather, the purpose of the Proclamation is political posturing to please Trump’s political base, while causing untold pain and suffering on people, both US citizens and would be immigrants, who will be prevented from uniting as a result of this ban. According to this chilling NY Times story, an angry and brooding Trump impulsively thought of issuing the order when he realized that he was not polling well in battleground states.

Although Trump claims to have derived the authority to ban immigrants under section 212(f) of the Immigration and Nationality Act (INA), which he relied upon when he issued the travel bans and the third watered down version was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamation from his prior travel ban. The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice. For example, EB-5 investors have been exempted from the ban while other would be immigrants who have properly obtained approvals under the law, and many who have waited for years in green card queues, have been improperly banned. While spouses and children of US citizens have been exempted, parents of US citizens have not. Diversity lottery winners are also included in the ban, and Trump’s hostility to them is apparent when he referred to them as hailing from “shithole” countries.  Trump’s disapproval of family-based immigration, which he pejoratively refers to chain migration, has no relation to protecting American workers during the COVID-19 crisis.

Although the Supreme Court upheld Trump’s travel ban that focused on mainly Muslim countries, and which is why it is also appropriately called the Muslim ban, it is not a foregone conclusion that courts will uphold this ban as it completely rewrites the law based on subjective opinions and pseudo economic theories that are not consistent with the INA. Trump has used INA § 212(f) to reshape immigration laws enacted by Congress that have nothing to do with travel bans and national security. These initiatives have received push back from lower courts.  On November 9, 2018, Trump issued another Proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States.  The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation. The key issue is whether INA § 212(f) allowed a president like Trump with predisposed views against granting asylum to override entire visa categories or change the US asylum system?   INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration had virtually closed the designated ports of entry for asylum seekers, which forced them to cross the border through irregular methods. In East Bay Sanctuary Covenant v. Trump, the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus, INA § 212(f) could not be used as a justification to override INA § 208. The Supreme Court has temporarily stayed the injunction in a related case that prohibits asylum seekers on the Southern border from applying for asylum in the US if they have not applied in Mexico or Guatemala – and thus by implication East Bay Sanctuary Covenant v. Trump – from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided. There has been no ruling on the merits of the case.

On October 3, 2019, Trump yet again invoked INA § 212(f) by issuing a Proclamation to ban intending immigrants from entering the United States if they did not have health insurance within 30 days of their arrival in the United States. Under the health insurance proclamation, an intending immigrant who has satisfied all statutory requirements set out in the INA will nevertheless be permanently barred from entering the United States if that person cannot show, to the satisfaction of a consular officer, that he or she either “will be covered by approved health insurance” within 30 days of entering the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” In Doe v. Trump, a federal district court in Oregon temporarily  blocked the health insurance proclamation through a nationwide injunction by relying on East Bay  Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA  § 212(f) to amend the INA. In the health insurance case, Trump’s proclamation contradicts the public charge provision under INA 212(a) (4), which does not have a health insurance requirement. The Ninth Circuit has upheld the temporary order of the Oregon district court, although it has a strong dissent by Judge Bress criticizing the Oregon district court’s finding that INA $ 212(f) was unconstitutional  under the nondelegation doctrine. Under this doctrine, associated with separation of powers, Congress cannot delegate legislative powers to the president under INA § 212(f). This argument needs to be watched more closely as it is bound to play out further when the administration defends its authority under INA § 212(f) in this case and other cases.  The Supreme Court has not yet intervened in this case.

On January 31, 2020, Trump used his extraordinary broad powers under INA § 212(f) to expand his travel ban to six additional countries.  The affected countries are Nigeria, Eritrea, Sudan, Tanzania, Kyrgyzstan and Myanmar. The expanded ban comes about three years after the prior ban that was upheld by Trump v. Hawaii. Most of the countries targeted in this ban, like the prior travel ban, are countries with significant Muslim populations. Even Myanmar, where Buddhists constitute the majority, has a significant minority population comprising Muslims including the persecuted Rohingya people.  The administration spuriously argued that the new travel ban is vital to national security and the ban will remain “until those countries address their identified deficiencies” related to security and information-sharing issues. Unlike the prior travel ban, the more recent travel ban only restricts immigrants from Burma, Eritrea, Kyrgyzstan and Nigeria. The restrictions on Sudan and Tanzania are narrower as they only apply to immigrants who have won green cards under the diversity program. Like Trump’s latest Proclamation, this travel ban does not apply to nonimmigrants who visit the US temporarily such as tourists, students or workers under specialized work visa programs such as the H-1B for specialty occupations or L-1 for intracompany transferees. As explained in a prior blog, the justification that the administration  provided was that it is harder remove immigrants from the US is also spurious from a security perspective since all noncitizens are subject to the same removal process, able to contest the charges against them and are eligible for relief from removal. People placed in removal can remain in the US until they exhaust all their appeals.   Also the justification to restrict immigrants from Tanzania and Sudan who have won green card lotteries makes even less sense. Why would one who has won the lottery in Sudan and Tanzania pose more of a risk than someone who is immigrating on another basis? The January 31, 2020 travel ban reflects Trump’s abhorrence against DV lottery winners from poorer countries, and again, like the most recent Proclamation devalues permanent immigration to the US.

Notwithstanding the prior Trump v. Hawaii ruling, it is imperative that the limits to INA § 212(f) be challenged as Trump can use this provision to radically transform immigration laws enacted by Congress, and without going through Congress to amend laws that he does not like. A challenge to the expanded ban will again give courts the ability to examine INA § 212(f).   The Supreme Court, disappointingly, held in Trump v. Hawaii   that INA § 212(f) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” One should however  still give credit to prior lower federal court decisions that blocked the first and second versions of the travel ban, on the grounds that Trump exceeded INA § 212(f), which were far worse than the watered down third version that was finally upheld. Although the Supreme Court may have stayed the injunction in East Bay Sanctuary Covenant v. Trump, it has not ruled on the merits of the Ninth Circuit’s reasoning that Trump could not use INA § 212(f) to rewrite asylum law in the INA. The Supreme Court is yet to hear any challenge to the health insurance proclamation. The Ninth Circuit in both these cases did not disapprove of the reasoning by district court judges that Trump overstepped his authority notwithstanding the powers given to him under INA § 212(f). The latest Proclamation banning permanent immigration, if extended  beyond 60 days and even expanded  to other nonimmigrant visa categories, would provide another basis to test the limits of INA § 212(f) in federal court. Trump has rewritten the immigration law in the Proclamation according to whim and caprice that conflict with existing provisions in the INA. While the INA allows US citizens to sponsor spouses, minor children and parents as immediate relatives, Trump has rewritten the law to exclude parents of US citizens. Under the Proclamation, even adult children and siblings of US citizens have been banned.  Similarly, while the INA specifically allows permanent residents to sponsor spouses, minor children and adult unmarried children, the Proclamation excludes them all together. The exception of EB-5 investors from the ban is hardly surprising given the Trump and Kushner family’s involvement in real estate development, which attracts funding from foreign investors.

The first challenge to the Proclamation was filed on April 25, 2020 in the form of an emergency Temporary Restraining Order as part of  the challenge to the health insurance proclamation in  Doe v. Trump as plaintiffs in the class. They are underaged children of lawful permanent residents who will be adversely impacted by the latest Proclamation if they are unable to obtain immigrant visas before they age out. This is only the opening salvo attacking the Proclamation on a narrow basis, which will inspire others, including state attorney generals to also legally challenge it. In approving Trump’s first travel ban, the majority in Trump v. Hawaii made reference to Korematsu v. United States, This was the shameful Supreme Court case that allowed the internment of Japanese Americans after the attack on Pearl Harbor in 1941. Justice Sonia Sotomayor referencing this decision in her powerful dissent in Trump v. Hawaii. Justice Sotomayor found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy. The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel bans, especially after the second one and this Proclamation, they are not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

It is time to revisit the Supreme Court’s overruling of Korematsu in Trump v. Hawaii. In that case, the Supreme Court opined that the first travel ban was facially neutral and took pains to distinguish it from the repugnant Korematsu decision. The subsequent use of Trump’s authority under INA § 212(f) confirms that the first travel ban was not neutral, and this Proclamation, along with other executive orders under INA § 212(f), are strikingly similar to Korematsu as they lack any rationale. Since the first travel ban took effect, thousands of intending immigrants from the banned countries, from infants to elderly parents, have been needlessly impacted and they pose no threat to national security.  The latest Proclamation’s justification is economic – the millions of job losses – than health related. The president should not be allowed to rewrite the INA based on periodic downturns in the economy since the last time Congress fixed the number of visas was in 1990, and there have been quite a few economic downturns since. Moreover, the waivers in the travel bans are a sham and are seldom granted. There are no waivers in the most recent Proclamation to those impacted, only exceptions.   INA § 212(f) must have limits, courts must hold, including the Supreme Court someday. Miller’s conference call to Trump’s supporters is the smoking gun, and Exhibit A, to show in court that Trump’s latest Proclamation is a chimera – it has nothing to do with COVID-19 but is part of the long term goal of this administration to reduce immigration levels. As president of the United States, Trump is still subject to laws enacted by the US Congress. He cannot be allowed to be King and change them through whim and caprice.

 

Cyrus Mehta

Is Trump’s Proposed Scrapping of the H-1B Lottery in Favor of the Highest Wage Such A Good Idea?

/0 Comments/in /by

By Cyrus D. Mehta and Sophia Genovese-Halvorson

Employers have already begun preparing for the upcoming H-1B visa lottery season.  The annual H-1B cap is limited to 65,000 visas per year for applicants with bachelor’s degrees, and an additional 20,000 for those with master’s degrees from US universities. The filing period begins on April 1, 2017. H-1B petitions received during the first five business days of April – April 3 to April 7 – will be given consideration under the lottery. Based on last year’s filings, the odds of getting an H-1B visa in the lottery is approximately 33%.

The H-1B lottery has been viewed as benefitting larger employers, mainly Indian IT firms that file a large number of petitions, over smaller employers who wish to focus on employing a single or few employees. A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery as contravening the INA, seeks to disrupt the status quo by allowing all employers to file on a first come first served basis. Under this plan, those who are not among the first 85,000 H-1B petitions received would be placed in a queue or wait list instead of being denied due to the quota having already been met. If this lawsuit is successful, it will certainly produce a long queue for the coveted 85,000 H-1B visas, and so most will still not benefit even after the lottery is dismantled.

Now Trump seeks to also disrupt the H-1B visa lottery, according to an article in Reuters. Specifically, Stephen Miller, senior advisor to the Trump administration, has suggested that the USCIS should abolish the H-1B lottery as we know it and replace it with a system which favors those who file on behalf of prospective employees with the highest wages. This proposal is similar to the one made by IIEE-USA, which, in addition to giving priority to employers who are willing to pay higher wages, suggest that the USCIS should also give lower priority to H-1B dependent employers. Most H-1B dependent employers, who have more than 15% of their workforce on H-1B visas happen to be Indian IT companies. This is also similar to the proposed reordering of access to H-1B visas in the Grassley-Durbin bill, which seeks to curtail the H-1B visa program in many other counterintuitive ways, including imposing mandatory recruitment of US workers before an H-1B petition is filed. Although a preeminent commentator, Vivek Wadhwa,  has praised the proposal on the grounds that Indian IT companies have been abusing the H-1B visa, we have several concerns about the proposed restructuring.

First, this preferential system would exclude entry-level professionals, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. While employers using the H-1B visa program have been criticized for excessively relying on the Level 1 wage, paying such a wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision.

Second, by favoring foreign nationals with the highest wages, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer wishes to bid for a worker by offering a higher than market wage, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is a result of an H-1B auction due to an artificial limitation in the number of visas, it could also have the effect of artificially distorting wages. It may also result in the inequitable result where American workers may be paid less than foreign H-1B workers, resulting not just in H-1B violations but also in discrimination lawsuits against employers. Therefore, under this proposal, the H-1B program may be criticized for causing imbalances between foreign and American workers.

Third, entrepreneurs who wish to obtain H-1B visas through their own startup companies will also suffer under this proposal. Their startups may not be able to pay them a higher wage than necessary in order to compete for an H-1B visa. Still, these startups hold promise to become successful and create jobs if the founder is able to remain in the US on an H-1B visa. This is why the USCIS provides entrepreneurs to get sponsored through existing visas such as the H-1B in the Entrepreneur Pathways Portal.  Although the USCIS has finalized a special parole rule for entrepreneurs, the final rule’s preamble acknowledges that Entrepreneurs Pathways compliments the parole rule and the two can thus harmoniously exist.  Even Wadhwa has stated that we are not encouraging startups and thus shooting ourselves in the foot, noting that “Google and Facebook can buy all the talent they want — it’s the startups who are struggling… The good thing is we have a powerful innovation system, and there are good things happening in Silicon Valley anyway, but the bad news is there’s a lot happening in other countries that would’ve happened here if we had let people come here. America gave a gift to the world.”

Fourth, while it has become fashionable to throw IT companies under the bus these days, they have to also be part of the solution. The use of IT consulting companies is widespread in America (where even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors.  IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa even if they abide by H-1B rules regarding wages. However, it is this business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-tier talent quickly with flexibility, at affordable prices that benefit end consumers, and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the US promotes when it’s in their favor, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The solution instead lies in increasing H-1B caps in Congress rather than reordering who can have access to H-1B visas under an artificially small quota. As we have previously blogged, by continuing to limit the H-1B program US employers will remain less competitive in the world markets. By limiting the availability of H-1B visas, employers are missing out on much-needed innovation in US industries, especially in the STEM fields. This failure to innovate within the US domain may encourage employers to look to overseas markets in order to develop and expand their companies. This is bad news for the US economy. H-1B workers have historically helped to improve the US economy, which in turn helps to create more jobs for Americans.

It is also a fact that more H-1B workers are needed in the IT sector as the United States does not produce enough computer professionals of their own. Most American IT workers are self-taught, as opposed to being formally trained at an institution, according to one US-based IT worker who spoke to the authors for this blog. Moreover, the United States has more venture capital investments for new companies than most other countries, but lack the domestic labor force to reap the benefits of such investment, thereby making the need to bring in H-1B workers ever more necessary to grow startup companies.

Lastly, the United States is no longer the only player in the game. The “Silicon Valleys” in China and India are vastly more agile for quick development and production, largely due to the availability of skilled workers. Meanwhile, American innovative companies are hamstrung for lack of them and are thus forced to move more of their research and development facilities overseas. The most talented will go to countries where they are more welcomed, which may no longer be the United States.

Increasing quotas in the employment-based preferences, along with the H-1B visa quota,  is the best way to reform the H-1B visa program, rather than to further shackle it with reordered lotteries, stifling laws and regulations, labor attestations, and quotas. If there is a concern about IT companies displacing US workers, such as what happened at Disney, then increasing the wage of an exempt worker from $60,000 (which was set in the 1990 Act) to something higher might be palatable in exchange for more H-1B visas annually and no further restrictions. If an H-1B dependent employer does not hire an exempt worker, then it needs to undergo an additional recruitment and anti-displacement attestation. This has been proposed in the Protect and Grow American Jobs Act sponsored by Congressman Issa, which increases the wage for an exempt H-1B employee from $60,000 to $100,000. If at all Congress wishes to impose restrictions on the H-1B visa, the Issa bill is preferable to the Grassley-Durbin bill.

Still, artificially raising wages above market wages would hurt the ability of US businesses to use the expertise of IT consulting companies in becoming more efficient, and thus passing on the benefits to consumers and even creating new jobs. Perhaps, the $100,000 wage can be lowered for certain exempt workers, such as those who have been sponsored for permanent residence through the dependent employer or those who have graduated in certain STEM disciplines.

Regardless of how one reorders access under the lottery, there will always be a shortage if the cap is limited to a mere 85,000 visas per year. For FY 2017, the USCIS received over 236,000 H-1B petitions, all vying for one of the 85,000 visas available. This means that some 151,000 or more people – highly qualified individuals with dreams and career aspirations – will likely be denied the ability to work in the US. This is not for lack of skill, this is not for lack of good moral character, but for an arbitrary cap system that limits their upward mobility and stifles US innovation in many fields. A system which seeks to provide preferential treatment to the highest paid foreign workers within the confines of an artificially low quota are unlikely to improve the position of US companies seeking to be competitive in global markets.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]