5 Employment Visa Issues to Watch In a Trump Presidency

Trump could have a big impact on businesses accustomed to being able to hire foreign talent to fill jobs, especially in sectors such as technology and engineering.

President-elect Donald Trump has talked about immigration from the start of his presidential campaign. Much of his focus has been on undocumented immigrants.

But questions remain as to what Trump, whose campaign and transition team did not respond to request for comment, would do with another type of entrant into the U.S.—the holder of employment visas. Here, Trump could have a big impact on businesses accustomed to being able to hire foreign talent to fill jobs, especially in sectors such as technology and engineering.

As reported in sibling publication The Am Law Daily, Trump's choice for attorney general, Jeff Sessions, R-Alabama, has proposed changing the H1-B program used to hire foreign workers. Some labor groups charge that it has been abused by employers to undercut American workers, but major employers such as Facebook's Mark Zuckerberg say that the program is vital to their businesses and to the economy.

On Wednesday, Dec. 7, it was widely reported that President-elect Trump had picked retired four-star Marine General John Kelly to head the U.S. Department of Homeland Security, the sprawling federal department created after the 9/11/ terrorist attacks.

DHS includes the departments of U.S. Immigration and Custom Enforcement, U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection, among others, which will be responsible for enforcing any changes in the immigration laws. Kelly's last command as general included oversight of Guantánamo Bay detention center in Cuba.

Nothing is set in stone, but here are five ways that the Trump administration could change current employment visa programs:

1. End the TN Visa Under NAFTA

One of the main targets of Trump's derision during his presidential campaign was the North American Free Trade Agreement between the U.S., Canada and Mexico, enacted in 1994. Trump said during his campaign last spring that he would rip up trade deals like it.

Although rhetoric from his team has since softened from tearing up NAFTA to "right-sizing" it, a casualty of paring down the agreement could be the TN NAFTA Professionals Visa, a nonimmigrant visa that was the part of the trade deal, which allows Canadian and Mexican citizens to gain entry to the U.S. for jobs.

Andrew Merrills, a partner at Ogletree Deakins in Raleigh, North Carolina, who leads the firm's immigration group, said that an end to the TN temporary visa would affect many jobs and industries, but especially engineers, accountants and computer systems analysts.

"The TN is definitely at risk, and that will certainly impact a lot of people," he said, adding that companies that used to rely on TN visas may have to pivot to applying for H1-B visas for workers they want to bring into the country instead, even though H1-B numbers are capped and oversubscribed.

2. Impose a New H1-B Cap

The H1-Bnonimmigrant employment visa is available to workers who have highly specialized knowledge and possess at least a bachelor's degree or the equivalent, and who are sponsored by an employer. These visas, which are popular especially with technology companies and IT outsourcing firms, are capped at 85,000 new recipients per year. Applications have consistently exceeded that cap recently, however, with 236,000 requests submitted this year for an H1-B.

Many Silicon Valley companies have lined up behind FWD.us, an immigration lobbying group started by Facebook founder and chief executive Mark Zuckerberg and other tech industry leaders that has worked toward raising the H1-B cap.

Trump has vacillated on his position on the H1-B, stating the need for highly skilled workers in the U.S. and particularly in Silicon Valley, but also saying on his campaign website that he will "end forever" the use of H1-B as a "cheap labor program."

Despite the rhetoric, however, Matthew Dunn, an immigration partner at Kramer Levin Naftalis & Frankel in New York, said that while the cap may not go up, he doesn't foresee it declining either, thanks to the skills that companies are getting from foreign nationals.

"Because of the need, the connection between being successful and use of these foreign nationals, I don't see [the government] lowering the H1-B quota," Dunn said.

3. Create a "U.S. Workers First" Standard

Although the H1-B cap may not rise, what Trump could do, attorneys say, is to add a new market-testing requirement for companies when they want to apply for H1-B visas.

A common allegation about the current H1-B visa program is that overseas workers applying through the program may be willing to work for less than U.S. workers, pressuring wages and depriving American citizens of jobs. A group of tech workers who lost their jobs at Disney filed two federal civil racketeering lawsuits in U.S. district court in Orlando earlier this year, claiming that the company and two IT outsourcing companies, HCL and Cognizant, colluded to replace them with cheaper foreign labor.

Ian Macdonald, a partner at Greenberg Traurig's Atlanta office, said that he thinks that a legislative or regulatory push for more domestic hiring is possible.

"We could see potentially an advertising requirement under the H1-B program to make sure that U.S. workers are not displaced and a requirement that there is reasonable recruitment conducted prior to sponsoring an H1-B worker," he said.

A market test was once proposed in the Border Security, Economic Opportunity and Immigration Modernization Act, an immigration reform bill that passed the Senate in 2013, but then stalled out.

The bill proposed that companies considering importing H1-B workers post the positions that they would fill with these foreign workers on a U.S. Department of Labor website to allow U.S. workers to apply. If an equally or better-qualified U.S. worker applied, the company would have to offer them the job.

4. Modify the H-2B Program

Another popular visa option for foreign workers is the H-2B visa for temporary nonagricultural workers, which allows one-time or seasonal workers to enter the United States.

Glenn Cooper, a shareholder at law firm GrayRobinson who works on immigration law out of the firm's Miami and Fort Lauderdale, Florida, offices, says that the visa is popular at hotels and resorts, particularly during vacation season.

He pointed out that Trump has been known to hire H-2B workers at his own businesses. The Palm Beach Post reported Tuesday that the president-elect won approval to hire 64 foreign workers under the program this year for his Mar-A-Lago Club in Palm Beach.

"It could certainly have a grave impact on large hospitality entities around the country if the H-2B is negatively impacted," he said. "But I don't imagine that the administration would do that, given that the hospitality industry around the country is such an important one."

5. Direct DOL to Crack Down on Employment Visa Abuse

In a recently released YouTube video, Trump seemed to pledge to go after companies that abuse the visa system.

"On immigration, I will direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker," said Trump.

Dunn said that companies should be ready for more scrutiny of their foreign workers here on special visas. "I think now you'll certainly see the government being much more aggressive in reviewing and auditing companies, and the end result is that if they are not playing by the rules, there could be a penalty that will be enforced," he said.

Originally published on Corporate Counsel. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Contributing Author

Rebekah Mintzer

Rebekah Mintzer is one of the staff reporters at Corporate Counsel and Law.com. You can email her at rmintzer@alm.com or follow her on Twitter 

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