On May 21 2020 by Maria M. Mihaylova

COVID-19 – A Convenient Pretext for Questionable Immigration Reform

To say that COVID-19 has fundamentally changed our lives is an understatement. Just a mere two months ago, we blissfully looked forward to vacations and which concert, Broadway play, or restaurant to visit on the weekend. Then, like a tornado, COVID-19 ripped through the United States. The economy suffered as many businesses couldn’t operate remotely and closed down.  Unemployment skyrocketed, reaching 14.7% as of May 8, 2020.

In response, on April 23, 2020, the administration temporarily suspended the entry of “Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The proclamation suspends the entry of foreign nationals who are currently abroad and do not possess a valid immigrant visa in their passport. It does not apply to current permanent residents, non-immigrant visa applicants, special immigrants, and spouses of U.S. citizens among other limitations. Entry is suspended for 60 days, although most practitioners expect the temporary ban will be extended beyond its initial period.

The action was deemed insufficient by immigration hard-liners like senators Chuck Grassley, Ted Cruz, Tom Cotton, and Josh Hawley. In a letter to the President, dated May 7, 2020, the representatives urged the administration to suspend the processing of all guest worker visas, as well as all new guest worker visas. The letter also calls for the immediate suspension of all F-1 Optional Practical Training (OPT) for international students, who are typically allowed to gain practical experience and training after graduation for one year and, if in a qualifying STEM field,  three years. The senators proposed an initial 60-day suspension for all non-immigrant guest worker visas and OPT applicants, and an extended suspension for new guest workers and OPT applicants for a year or until national unemployment rates return to normal.

While an attempt to find a potential solution and relief to the unemployment numbers, the letter, unfortunately, overlooks key data. First, the letter specifically identifies H-1B and H-2B visa suspensions as potential sources of unemployment relief. Specifically, the senators suggest that suspension of H-1B visas will imminently open jobs in the science, technology, engineering and mathematics (STEM) fields, which currently account for the greatest number of H-1Bs. The problem with this recommendation is twofold.

STEM field businesses are not the industries currently hit the hardest by the recession  According to Statista, the sectors most impacted by COVID are leisure and hospitality (39.3% unemployment), service businesses (23%), wholesale and retail (17.1%), and construction (16.6%). While action should be taken to alleviate unemployment in these sectors, none of them represent STEM fields, which the senators acknowledge utilize the bulk of H-1B visas.  There are no specific reports on the unemployment rates within the STEM sector, but part of the reason for this lack of data is that the very nature of STEM-focused businesses enables such employers to transition their operations and allow their personnel to work remotely. Additionally, STEM-based businesses benefit the sectors currently hardest-hit by the COVID crisis and the STEM-based businesses will also play a part in the ability of the economy to quickly bounce back.

The requirements for the H-1B classification also make suspension of these visas ineffective in combatting unemployment in the hardest hit sectors like hospitality, retail, and construction.  Relatively few H-1Bs are issued in these industries as H-1Bs  visas are is reserved for positions that require the application of a highly specialized body of knowledge and are only granted to  workers who possess at least a baccalaureate or higher degree in a field that is directly and closely related to the work being done. Thus, by design, employers that seek H-1B workers usually have highly specialized needs, for which knowledge is not easily transferrable.

There are also a limited number of H-1B visa holders.  Each year, there are only 65,000 H-1B visas available under the lottery and an additional 20,000 for those with US Master’s degrees.   The demand by US employers for this highly specialized knowledge held by H-1B applicants far exceeds the available visa numbers and each of the last several years, there has been a “lottery” as demand far exceeds the number of available visas.  Thus, while suspending H-1B visas may open up some jobs, they will be in the wrong sectors and will be for positions that many currently unemployed Americans are not likely qualified to occupy.  Such an action could in fact further injure our economic recovery as much of the scientific progress that we would be otherwise able to make to ease the lives of American workers could be stifled.

H-2B visa are utilized by businesses that have seasonal, temporary non-agricultural needs. The senators’ reasoning suggests that US workers will willingly fill the seasonal positions freed up by the proposed suspension of H-2B visas until their respective sectors recover and hiring levels return to their normal state. The assumption is misplaced. In order to obtain an H-2B visa, employers must advertise and show that there are no qualified US worker willing to take the job.  U.S. workers are generally unwilling to take and apply for these jobs.   

Finally, the letter also seeks the immediate suspension of F-1 Optional Practical Training (OPT)  The senators suggest that if international students are stripped of the benefit to gain practical experience in their fields after graduation, US graduates will have greater opportunities in the market., The suggestion fails to recognize the immense contribution F-1 international students make to the US economy.

Discontinuing OPT for international students has been under  discussion for a number of years and has resulted in a consistent decrease in the number of F-1 visas processed since 2015 (from more than 640,000 in 2015 to a little over 360,000 in 2019). Despite the substantial drop in the F-1 population, international students contributed approximately $41 billion to the US economy during the 2018-2019 academic year. Additionally, NAFSA, the Association of International Educators, reported that for every seven F-1 students, three US jobs are created in the higher education sector.  Unlike US students, F-1 students generally do not have access to any grants or financial aid, and they must demonstrate ability to financially sustain themselves during their course of studies.  Accordingly, the visa category infuses funds into higher education that often enable schools to fund scholarships and research for US citizens.  Without OPT, it is unlikely that foreign students would enroll in US universities, leading to significant economic issues. 

Overall, while undoubtedly proposed in an effort to help the American worker, the senators’ sentiment carries the hidden risk of further injuring our economic recovery. Immigration has fueled our progress over the years through a careful balancing of the geographic, industrial and talent needs of our economy. Blindly suspending visa processing without thoroughly examining the location-specific needs of our communities will be all but an empty gesture to the American people.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the May 21, 2020 edition of the The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.