Biden’s immigration platform is much less restrictive than what we have seen under the Trump administration.  Biden has promised to immediately reverse Trump-era policies, focusing first on high-profile issues like DACA, Muslim bans, and asylees (i.e. separation of children from their parents).

The rhetoric from the Biden team has been of tolerance and reconciliation, so there is reason to believe there is good news for immigrants and visa-holders.  That said, the US is not exempt from the heightened security and rising anti-immigrant sentiment around the world, and not everyone is in favor of loosening restrictions put in place over the past four years.

This article looks at some of the specific policy changes under Trump and how those have affected US employers.  In order to determine whether the Trump-era policies have had a positive or negative impact on the US economy, a recent nationwide survey asked employers about their experiences and how they have responded to the changes.

It is important to understand the differences between immigration laws and immigration policies/procedures.  The actual laws are very hard to change because they have to go through Congress.

The Trump Administration, like all other administrations, did not accomplish much in terms of changing the existing statutes.  That, however, certainly does not mean that nothing has changed.

As we have all seen, while presidents cannot unilaterally change immigration laws, they can implement new policies and procedures.  These policies/procedures have a very direct and immediate impact on companies and individuals.

At the end of 2020, a survey of 215 US employers was conducted[1] to gauge how Trump’s policies have affected their companies, as well as their feelings about the expected immigration reforms under Biden.

The survey indicates the 400+ policies and rules put in place between 2017 and 2020 have caused delays and increased costs for employers.  Further, business owners claimed that these policy changes directly led to an increase in offshoring and outsourcing, with only a slight increase in domestic hiring.  From a purely economic perspective, it does make sense that employers would sooner outsource work to cheaper foreign markets than increase expenses by hiring domestic employees.

If these survey results are representative, then the Trump policies intended to increase the hiring of local workers actually had the exact opposite effect.

Between the Pandemic and the Trump regulations, the pipeline for foreign talent was all but closed off entirely.  Between January and April 2020, the number of visas issued to foreign nationals declined by 93.2%. According to the employers surveyed:

Green Cards

36% said there are too few green cards available each year

39% said the number was just right

18% said there are too many

Visas

41% said there were too few employment-based visas available

37% said the amount is correct

17% said there are too many

These results align with current data on the STEM skills gap in the US work force.  Despite the economic downturn due to the COVID-19 pandemic, the December 2020[2] unemployment rates for computer science and mathematical jobs was just 3.0%, which is essentially the same as it was before the pandemic’s onset in March 2020.

Meanwhile, the general unemployment rate peaked at 14.4% in April and stabilized at 6.5% in December 2020.[3]

Specific Trump Policies

In April 2017, the Trump Administration issued the “Buy American, Hire American” executive order, which promised to protect American workers by restricting immigration. The USCIS, DHS and DOL put in place a number of new policies, rules and regulations meant to carry out the purposes of the executive order.

Requests For Evidence

A Request for Evidence, or “RFE,” is issued by the USCIS when they want an applicant to submit additional information.  RFEs always slow down the visa process and are generally considered to be a “bad sign” since the application is undergoing scrutiny.

Between 2017 and 2019, the issuance rate for RFEs rose from 21% to 40.2%. The survey respondents indicate the following:

How have the increased number of RFEs impacted your company’s immigration program?	Totals
RFEs have made the process more cumbersome	45%
We have stopped sponsoring aliens for certain roles	20%
We have withdrawn offers to aliens	29%
We have had to let workers go	22%

Public Charge Rule

One heavily litigated policy change was the Public Charge Rule, which was first implemented in February 2020.  This Rule requires employers filing green card petitions for their foreign workers to demonstrate the worker has not and will not rely on any government benefits such as Medicare, food stamps or housing vouchers.

The responses were as follows:

Has the Public Charge Rule impacted your sponsorship process?	Total
We are less likely to sponsor foreign nationals	14%
We are not less likely to sponsor foreign nationals, but it has been more expensive and time-consuming	51%
Our foreign national employees are resistant to starting the green card process	12%
No change	20%
Not applicable	3%

Previously Approved Visas

Also, in 2017, the USCIS changed a long-standing policy of not questioning previously approved applications when evaluating extension requests or new visa petitions.  Under Trump, however, whenever a worker requests an extension of a current visa, or files a petition for a new visa, the examining officers can go back and question whether the initial petition should have been approved to begin with.

Making previously approved petitions fair game for reversal has a strong chilling effect on workers requesting extension or permanent residence.  As a result, employers lose skilled workers. 

Restrictions on Length of Stay

The same year, the USCIS also began requiring detailed itineraries from employers and restricting the duration of visas.  The survey respondents said:

What impact have limits to the duration of visas for employees at third-party sites had on your business?	Total
We have a harder time filling roles	31%
We have passed the increased cost to our clients	27%
We have had to turn down business	22%
We have explicitly lost business as a result	19%

In response to the shorter durations, 35% of the surveyed employers said they began looking at alternative sponsorship options.  More importantly, 37% said they simply decided to fill these jobs by outsourcing offshore.

Consulate Closures

In March 2020, we saw many U.S. Embassies and Consulates close or restrict hours of operations.  The survey respondents comments on how such closures affected their organizations.

Have COVID-related closures of government offices impacted your business?	Total
We have had to delay work	46%
We have withdrawn offers	30%
We have directly lost business	20%
We have hired locally instead	37%
We have outsourced jobs to 3rd parties	33%
We have moved jobs outside of the U.S.	10%
We have created an entity outside of the U.S.	23%
We have lost job candidates	31%
No impact	4%

Student Visas

Trump’s temporary ban on J-1 visas and F-1 visas for students who could not attend in-person classes had immediate consequences for employers who hire from those pools.  It seems likely the policy will also disrupt talent acquisition in future as well, especially in STEM fields.  Respondents had this to say.

Have restrictions on student visas impacted your business?	Total
No impact	26%
We have had immediate difficulty filling roles	30%
We are anticipating an eventual negative impact to our talent pipeline	35%
Not applicable	9%

H-1B Visa Restrictions

In November 2020, the White House released two new rules placing restrictions on H-1B visas. First, the DHS narrowed the definition of a “specialty occupation” and made stricter degree requirements.  Second, the DOL raised the required wages for sponsored roles. A district court struck down both rules in early December, so there may be additional litigation to come unless the Biden Administration changes course on this.

Just the same, the issue is of some concern to the respondents, who said this.

How do you think changes to the requirements for H-1B sponsorship will affect your company?	Total
We would look for alternate routes to sponsor foreign nationals	24%
We are considering opening an office or offices outside the U.S. in countries with more favorable immigration policies	25%
We would need to consider moving the jobs overseas	14%

Increased Wage Requirements

Although new wage requirements are supposedly meant to ensure employers were less likely to hire foreigners for jobs that a U.S. worker could do, survey respondents indicate this:

How do you expect proposed changes to the prevailing wage requirement for H-1B visas to affect your business?	Total
Our wage levels already comply with the new requirements and/or we would be willing to raise wages to meet the new standards.	60%
The changes would lead to sponsoring fewer foreigners for jobs.	40%
We would either move those jobs overseas, outsource, or eliminate the positions altogether.	46%

HLA’s Immigration Practice

The Future

Employers surveyed largely indicated the Trump policy changes to the immigration system were disruptive and costly to their businesses. They did, however, express support for broader immigration reforms.  In particular, employers seem interested in making sponsorship easier and bringing more transparency to the immigration system.

Selection Process

Legislators and stakeholders have called for fundamental changes to employment-based immigration processes. For example, the DHS proposed a new selection process for H-1B visas that would give priority to petitions for higher-paid roles, as opposed to the random lottery currently in use. Respondents say such a change would be positive for their organizations.  However, some employers say such a change would make things very difficult for entry-level employees.

How do you expect the proposed change to the H-1B selection system to impact your company?	Total
Positively because we sponsor higher-paid workers.	59%
Negatively because we will be less likely to have our applications approved.	24%
Not applicable	7%
Not sure	10%

Points-Based System

The United Kingdom recently put in place a points-based immigration system, which promotes employment-based immigration.  Many, including the survey respondents, want to see the U.S. enact a similar model and do away with the current quota system.

What would be the benefits of the U.S. switching to a points-based system?	Total
Clearly defined selection criteria	51%
Flexibility to meet changing market demands	43%
More fairness by avoiding biases and perceived randomness	42%

To be fair, not all respondents saw the point-based system as being entirely positive.

What would be the negatives of the U.S. switching to a points-based system?	Total
Data privacy concerns due to the amount of information collected	29%
A points-based system could be seen as contradicting to the US policy of welcoming all	33%
A greater risk for abuse by employers	31%

The “Heartland” Visa

During the last Presidential Election, several candidates talked about setting up a location-based visa that would promote development in non-coastal or rural areas.  Joe Biden included this idea in his immigration platform, along with an expansion of current quotas for visas and green cards.  The survey respondents said this.

If a “Heartland Visa” introduced, would your organization use it?	Total
Yes	67%
No	14%
Not sure	16%
Not applicable	3%

 Conclusion

Due to the Pandemic, unemployment rates are currently around 6.5% .  However, the unemployment rate is only 3.0% for math and science occupations.  Even without the Trump policies, there is a shortage of STEM talent in the US work force.  The last four years has forced employers to seek alternatives for filling their positions — which was, of course, the whole idea.

However, a significant percentage of affected employers have responded to the restrictive policies by outsourcing work to offshore locations, whether by hiring a foreign company or allowing a foreign employee to work remotely from outside the US.   It is virtually impossible to ascertain an exact number, but the result has likely been hundreds of thousands of high-skilled jobs moving away from the U.S.

It has been a dramatic four years in immigration, and the Biden presidency will surely bring about many new changes.  We anticipate the new policies will undo many, if not all, of the Trump changes.  The effects of the Biden polices remain to be seen, but we are hopeful they will ease restrictions currently in place and bring jobs back to the US.

~ Jeff Harrington, Esq.

[1] Envoy Global

[2] Bureau of Labor Statistics. “Labor Force Statistics From Current Population Survey” December 2020.

[3] Bureau of Labor Statistics. “Labor Force Statistics From Current Population Survey” April 2020.