President Trump has issued a new proclamation “Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” that will halt the issuance of certain major categories of nonimmigrant (i.e. temporary) work visas until the end of 2020, and calls for a number of rule changes with respect to work visas and work authorization. (A presidential proclamation is essentially the same as an executive order.) This follows his April proclamation that would suspend a third of immigrant visas from being issued (immigrant visas are also known as “green cards,” which confer foreign residents with lawful permanent resident status that can eventually lead to citizenship). The language in the April proclamation, which was initially valid for 60 days, also directed federal agencies to examine nonimmigrant work visas; this new proclamation appears to be the result of that effort. Trump’s new proclamation extends the duration of the April proclamation banning certain green cards until the end of 2020.
Trump’s June 2020 proclamation will suspend the issuance of new temporary work visas to migrants and their family members if they are applying from abroad, between now and December 31, 2020, but does not appear to suspend the issuance of visa statuses for those applying from within the United States. The impacted visa classifications are the H-1B for occupations requiring a college degree, H-2B for low-wage jobs outside of agriculture, L-1 for intracompany transferees and personnel with specialized knowledge, and some of the major programs that authorize employment in the J-1 Exchange Visitor Program, specifically the J-1 Intern, Trainee, Teacher, Camp Counselor, Au Pair, and Summer Work Travel programs.
While most of these visa classifications are issued to applicants at consulates abroad and are therefore suspended, the H-1B is an exception. In 2019, 60% of new H-1Bs were issued to migrants who were already present in the United States, often on a student visa. Therefore, the H-1B program will be less impacted in terms of a reduction in visas. (It may even result in a higher share of foreign graduates of U.S. universities being granted H-1B status, since they’ll be applying from within the country.)
The proclamation contains exceptions for migrant workers whose work will support the food supply chain or serve the national interest by being either critical to defense, law enforcement, diplomacy, or national security; if they’re involved with the provision of COVID-19 medical care or research; or if their work is otherwise necessary to facilitate the economic recovery of the United States.
In addition, the proclamation calls for the Department of Labor (DOL) to promulgate rules to ensure that current migrant workers in the country with EB-2 or EB-3 green cards, or current H-1B visa holders, do not disadvantage U.S. workers—though it did not provide specific information on what they’re considering in that regard. The proclamation also calls on the State Department and Department of Homeland Security (DHS) to collect additional biometric information from visa applicants, it prohibits DHS from issuing employment authorization documents to migrants in the United States if they are subject to a final order of removal or if they’ve been convicted of a criminal offense, and it directs DHS to consider promulgating regulations on H-1B that would result in an “efficient allocation” of visas, which likely means prioritizing the issuance of visas by the highest wage offers, as some government officials have recently hinted at. (A very similar order on the allocation of H-1B visas was issued in section 5(b) of Trump’s Buy American, Hire American (BAHA) executive order in 2017, but has yet to be acted upon.)
There’s no denying that work visa programs desperately need to be reformed in order to be fairer to the 1.6 million temporary migrant workers who are currently employed with nonimmigrant visas, and to U.S. workers. There’s plenty of evidence that temporary migrant workers can be legally underpaid and are often exploited, in part because their visas are almost always tied to one employer who owns and controls their status. That visa status is what determines the worker’s right to remain in the country; if they lose their job, they lose their visa and become deportable. Visa program rules also make it easy for employers to avoid hiring U.S. workers in favor of temporary migrants, and even replace them. There is very little oversight of temporary work visa programs; in fact, most of the programs have no rules in place at all to protect migrants after they arrive in the United States, and in the programs that have rules, there’s little enforcement, and frequent and extreme violators of these rules are often allowed to continue hiring. And most temporary migrant workers—despite the contributions they make—never have a chance to become permanent residents or naturalized citizens.
Nevertheless, temporary work visas are one of the few existing pathways for migrants to contribute to the United States economically, socially, and culturally—which is why every administration should prioritize reforming visa programs in ways that uplift labor standards for all and ensure migrants are paid and treated fairly, and allow them to have a chance to quickly adjust to permanent resident status. But is this proclamation an honest attempt to fix U.S. temporary work visa programs? Undoubtedly, the answer is no.
Instead of offering thoughtful reforms, it slaps a blanket ban on a handful of visa programs. And it does so during a time when almost no temporary visas are being issued. In case the administration hasn’t noticed, the immigration system is already shut down, almost entirely, as a result of the pandemic, except for temporary migrant workers employed in agriculture with H-2A visas, which are not mentioned in the proclamation. We have yet to see any signs of when regular visa processing will resume at consulates abroad. Considering the number of new coronavirus infections continues to increase rapidly in the United States and abroad, it’s difficult to imagine the immigration system opening back up anytime soon. Would any of the banned visas have been issued in these programs before the end of the year absent this proclamation? I’m not convinced they would have, and at least one prominent immigration lawyer also holds that view.
Even before taking office, Trump was claiming he would fix temporary work visa programs, noting in an address as president-elect that he would direct DOL to investigate visa abuses. Trump later issued the BAHA Executive Order in 2017, which called on federal agencies to improve the H-1B visa program. But so far, nothing of substance has been done to raise wages for temporary migrant workers in visa programs, or to improve conditions for the U.S. workers that are employed alongside them in similar jobs. Instead—despite the absence of new rules or worker protections—before the pandemic, the number of visas issued in the programs where most abuses occur was actually increasing.
There are also no long-term, meaningful changes proposed to fix the H-1B or H-2B visa programs. None are proposed either for the J-1 or L-1 visa programs, or the Optional Practical training program, all of which have no wage rules, no annual numerical limits (except for J-1 Summer Work Travel), and no oversight or enforcement by DOL to protect labor standards. Many of the solutions are simple and enjoy bipartisan support, but it doesn’t appear that the Trump administration is engaging seriously with those ideas. For example, a real and meaningful reform of the H-1B and L-1 visa programs would require enacting the bipartisan H-1B and L-1 Visa Reform Act, which was recently reintroduced in the House and Senate by a bipartisan group of legislators, but Trump has never indicated if he supports the bill.
In light of all this, the new proclamation looks to be mostly symbolic and is likely a political tactic to blame immigrants for high unemployment, despite that fact that they had nothing to do with causing it. The economy has lost more than 30 million jobs because of the pandemic and federal lawmakers’ failure to provide adequate support to keep workers on payrolls, failure to provide aid to state and local governments whose tax revenues have plummeted, and failure to implement public health measures that would allow the economy to reopen successfully. The proclamation is ultimately a distraction from the real problems in our economy and a blatant attempt to divide working people based on race and status.
Since he didn’t try to reform work visa programs during the first three and a half years of his administration, there’s good reason to be skeptical that Trump will suddenly decide to improve conditions for workers with just five months left before the general election. The fact that on the same day as the proclamation, DHS posted the text of a final regulation that will make it nearly impossible for asylum-seekers to be able to work lawfully while their claims of persecution are adjudicated, which can take years—forcing them to either starve and become homeless or work unlawfully in order to survive—should tell you all you need to know about how little Trump cares about workers and labor standards.
Furthermore, Trump’s DOL has been M.I.A during the pandemic by failing to issue an Emergency Temporary Standard for workplace safety or take any significant enforcement actions to protect workers—including in industries like agriculture where hundreds of thousands of temporary migrant workers are employed, or in meatpacking plants where 40% of workers are immigrants. DOL’s absence has been so conspicuous that the Occupational Safety and Health Administration is being investigated for it.
In sum, the practical impact of Trump’s proclamation on temporary work visas appears to be minimal—for now. But the ultimate message inherent in Trump’s two immigration proclamations on green cards and temporary work visas has been communicated loud and clear: immigrants can and will be used as scapegoats to distract from the administration’s failings.