What President Trump’s Proposed Executive Order On Immigration Could Mean For America

On January 30th, 2017, a preliminary copy of an executive order on immigration was leaked from the White House. Dated January 23rd, 2017, the leaked document entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” is an essential policy directive with an outline and deadlines for reviewing visa categories.

Unlike the ban on seven counties, this executive order calls for reports to study impact of visas on American workers and processes used.  It references a number of visas specifically including:

• the B-1 visitor visa,
• the E-2 which is an investor visa for citizens of thirty plus countries with treaties with the US,
• the H-1B visa for jobs requiring university degrees or work equivalent,
• the H-2A for temporary agricultural workers,
• the J-1 visa for summer work and travel for foreign students
• and the L-1 for intra-company transferees.

The Executive Order would grant Homeland Security 90 days to review all regulations that allow foreign nationals to work in the U.S. to determine which of the regulations violate Immigration laws or are not in the national interest and should be rescinded.

Why the U.S. Needs Foreign Talent

Although this executive order does not yet suggest specific impact on visas, if this immigration reform occurs, we are concerned it could have a devastating impact on U.S. companies and our economy.

American companies, especially in the technology sector (the strongest part of our economy) rely heavily on workers with strong backgrounds in science and math to perform duties within the United States, many of whom come from outside the country.

Although the U.S. leads the world in innovation with dominant companies like Apple, Microsoft and Google, it lags far behind in science and math education according to the Organization for Economic Cooperation and Development (OECD).

OECD uses the Program for International Student Assessment or PISA to rate nations’ math and science training.  The U.S. is nowhere near the top of the global scoreboard.

However, US News & World Report ranks U.S. universities as the top 5 universities in the world and U.S. schools hold eight of the top 10 positions. However, many of these degreed and highly qualified professionals are forced to return to their native country after graduating. It is a well-established that many U.S. companies cannot find enough qualified people and must recruit internationally in order to continue to compete and grow.

Yesterday, the Dow took the largest tumble of 2017 so far, clearly as a reaction to the ban on seven nations and the impact the ban will certainly have on many U.S. companies.

The H-1B visa caps of only 65,000 per year with an additional 20,000 for advanced degree graduates from US universities pale in comparison for the market’s demand. In 2006, more than 335,000 applied in regulation mandated five day period, six months before the start date for the jobs. This causes a lottery in which only one in three of the applications are adjudicated by Immigration officials. Obviously without the cap far more American companies would utilize the visa option. As a result, we can only speculate how many positions are either left unfilled or moved to other countries.

OnlineVisas believe that tech companies and immigration practitioners need to collaborate with the President, agencies and Congress to trade some of the hurdles such as quotas and far-off priority dates for more compliance, addressing abusers and developing a more efficient system. If done correctly, a one-party government should be in a very strong position to create a better immigration policy even for the foreign based employees. The new President could help American companies recruit more quality workers, while also taking a tougher line on companies or individuals who are acting improperly.

How Immigration Creates Jobs for Americans

Not mentioned in the executive order (but something that should be lobbied by the White House) is the amount of jobs that recruiting foreign talent may actually created for Americans. Our large tech companies bring developers and programmers to the U.S., thus creating jobs for management and executive level employees to oversee them and provide ancillary services. If they have to leave, the managerial jobs leave too. The worst scenario for America is if whole departments or companies move offshore.

Indeed, a study by Madeline Zavodny of Agnes Scott College found that, “immigrants with advanced degrees boost employment for U.S. natives.” In fact, 262 jobs for domestic workers were created for every 100 which went to foreign born workers with advanced U.S. STEM degrees. 100 immigrants with advanced degrees in any field create 44 jobs among U.S. natives regardless of whether the degree is U.S. or a foreign equivalent.

The executive order requests reports, and there are a lot of ways to interpret data. We should hope that the interpretation of these facts does not negatively impact our leading companies, forcing them to ship more jobs away from the United States, move larger parts of their operations away or worse create a chilling effect on Silicon Valley and other areas.

Locations like Vancouver, Dublin or Mumbai are well positioned to bid to be the next hot beds for tech innovation, while America risks losing its hard-earned mantle as the world’s top innovator.

Sweeping Changes to Previous Policies

Looking further into the order, we find that DHS shall immediately terminate all existing parole policies, guidance and programs that do not comport with the principles of the order. This broad language may be used to rescind some or all of President Obama’s Executive Orders. These include the recent International Entrepreneur Rule, which created a process for entrepreneurs who raise $345,000 from investors or grants for $100,000 from federal and state governments and had more than 15% ownership in a company to work in that company for two years.

The second tier required growth of up to $5000,000 investment, $5000,000 in earnings, and 20% -growth or hiring 10 full time jobs over 5 years. This may not be in opposition to President Trump’s policies as it does create jobs, but it is not slated to go into effect until July.

Another Obama executive order was the New Rule affecting retention of high skilled workers passed January 17, 2017, which provided 16 new or codified rules permitting the ability of high skilled workers to transfer jobs and not lose green card petitions, among others. Employment authorization for certain spouses of H-1B visa holders, work cards for children that were brought to the US illegally called DACA and the never implemented and court enjoined parents of illegal children DAPA. It is unknown which or when these programs may be repealed.

Other points of the Executive Order include:

• Consider ways to make the process for allocating H-1B visa more efficient and ensure the beneficiaries are the best and brightest.
• Start performing site visas for L-1 visas including third-party worksites where workers have been placed and extend the site-visit program within 2 years to all employment-based visa programs.
• Analyze the nation’s current immigration policies and their impact on our society, the economy U.S. workers, foreign policy and national security interests of the U.S.
• Move towards a merit-based system.
• Restore integrity to student visa program and improve monitoring of foreign students.
• Provide a list of options for ensuing the efficient processing of H-21 agricultural visas.
• Incentivizing and expanding participation in E-verify by conditioning immigration benefits upon participation.
• Conform to Congressional Intent the manner DHS and State determines when an Immigrant Visa is available.
• Reform the manner in which Adjustment of Status to reduced inefficiencies in the way green cards are allocated
• Reform E-2 treaty investor visas for foreign entrepreneurs conform to Immigration laws.
• Reform J-1 Summer Work Travel to improve protections or U.S. workers and foreign workers.
• Dept. of Labor with State, Attorney General and Homeland Security shall investigate and file a report on the extent of injury to U.S. workers by H-1B, L-1 and B-1 visa categories.
• Publish a report detailing the number of Employment Authorization Documents issued during the year, total number of individuals who have EADs and categories for issuance of EADs.
• Publish a twice a year report detailing total number of foreign born persons authorized to work in the U.S. and restart fraud assessments for all visa categories.
• Publish a report detailing the impact of immigration both legal and illegal on wages and employment of U.S. workers since 2000.

While it is not surprising that President Obama’s executive orders were likely to be overturned by President Trump, there is some relief in that Immigration was not reformed with an immediate blanket approach the way the seven nation ban was handled. Immigration reform is not a bad idea, both parties have unsuccessfully attempted it through the administrations of many presidents. It requires a scalpel not a hammer. Let’s hope that our top companies and jobs in America are not lost in the process.