New Restrictions on Work Visas Seen Further Limiting Employer Options

Coronavirus (COVID-19) HR Management & Compliance

New restrictions on work visas going into effect on June 24 are aimed at easing the nation’s unemployment problem sparked by COVID-19, according to a proclamation from President Donald Trump, but critics of his actions on immigration fear it won’t help and will send the wrong signal.

Trump issued a proclamation on June 22 limiting entry into the United States of temporary foreign workers in several visa categories. Exceptions will be made for certain workers, especially those deemed vital to efforts to fight the coronavirus. Also, the new proclamation doesn’t affect workers with visas who already are in the United States.

The proclamation also extends restrictions on immigration Trump announced on April 21. That order applied to people seeking green cards and did not include temporary foreign workers. It was to last 60 days, but the new proclamation extends it through December 31.

The new proclamation excludes entry into the United States on the following visas:

  • H-1B: Allows people to enter the United States to work in specialty occupations. The visa holders must have a higher education degree or its equivalent.
  • H-4: Issued to immediate family members of H-1B visa holders.
  • H-2B: Permits people to enter the United States to work in temporary or seasonal nonagricultural jobs.
  • J-1: Authorizes individuals to work in exchange visitor programs. The president’s proclamation affects some J-1 visa holders.
  • L-1: Allows intracompany transferees to enter the United States to work for their current employer in a managerial or executive capacity or a position requiring specialized knowledge.
  • L-2: Issued to the spouses and unmarried children of L-1 visa holders.

Effect on Employers

Lori T. Chesser, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, says her experience has shown her that employers hire foreign workers because of either a general shortage of workers in their field or a shortage of specific skills.

“When U.S. workers are available, employers avoid the expense and hassle of sponsoring foreign workers,” Chesser says. “The administration does not see it this way and believes that foreign workers are ‘disadvantaging’ U.S. workers.”

Chesser says such actions may happen because unscrupulous people “will game any system,” but she says she doesn’t believe that is generally the case, and the new limits will take a toll.

“Employers who cannot find a U.S. worker will have a choice to forego hiring or outsource the work,” Chesser says.

Among the industries most affected by the restrictions are those employing high-level data analysis and other quantitative knowledge, “which is lacking in the U.S. workforce at the moment and is hard to learn quickly,” Chesser says.

Also, the construction trades rely heavily on workers with H-2B visas, as do other seasonal employers, Chesser says. “This is a good example of how the market could have worked on its own,” she says. “The proclamation assumes bad faith of U.S. employers, which in my experience is not true for the vast majority of employers.”

Martha N. Hereford, an attorney with Armstrong Teasdale LLP in St. Louis, Missouri, says the majority of U.S. workers who are unemployed because of COVID-19 don’t have the skillset to perform the duties that employers want to offer to H-1B or L-1 employees.

Many Americans unemployed because of the pandemic work in jobs that require in-person services, Hereford says. Most of those jobs don’t require the kind of education required of H-1B and L-1 visa holders.

A company applying for an H-1B to fill a professional position, such as an accountant, actuary, or data scientist, will most likely “not be able to fill this need with an unemployed U.S. worker who worked in the leisure, hospitality, retail, or other personal services industries,” Hereford says.

Likewise, L-1 visa holders must possess specialized knowledge relating to the company and must serve as an executive or manager or fill a position that requires specialized knowledge.

Long-Term Effects

The proclamation has sparked criticism from business interests, including the U.S. Chamber of Commerce, which issued a statement calling the action “a severe and sweeping attempt to restrict legal immigration.”

“Restrictive changes to our nation’s immigration system will push investment and economic activity abroad, slow growth, and reduce job creation,” the statement from the chamber’s CEO Thomas J. Donohue said.

Chesser says she is concerned about the signal the visa and immigration restrictions send. “I am concerned about foreign enrollment in U.S. colleges and universities,” she says, since students will be less likely to enroll if they don’t see job prospects in the United States for temporary work to gain experience.

“I am concerned that jobs will be outsourced that could be here, contributing to our economy and knowledge base,” Chesser says. “The proclamation is an attack on the fundamental purpose and assumptions about the value of immigration to the United States, the good faith and judgment of employers, and the ability of the market upon which we base our economy to work. And it looks like more is coming.”

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.

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