On April 22, President Donald Trump signed a proclamation “suspending entry of immigrants who present risk to the U.S. labor market” during the COVID-19 pandemic. How will that proclamation impact tech companies, particularly those that heavily leverage the H-1B visa?
The short answer: Probably not very much, at least when it comes to H-1B.
“Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak,” reads the proclamation. “The vast majority of immigrant visa categories do not require employers to account for displacement of United States workers.” Paired with Trump’s April 20 Tweet that immigration into the U.S. would be “temporarily” suspended, it seemed that the U.S. government was on the verge of a sweeping ban on all immigrants.
However, the proclamation features some pretty extensive carve-outs. For starters, it will expire in 60 days, at which point it could be modified or renewed; in also primarily targets those outside the country who are currently seeking green cards. Those already in the U.S., and those on non-immigrant visas such as the H-1B, are exempt. In addition, immigrant physicians and nurses, as well as those whose research is “intended to combat the spread of COVID-19,” will be allowed in.
Trump could well issue another order that would focus on restricting other visas and types of immigration—but given the fast-moving and multi-front nature of the COVID-19 pandemic, it remains to be seen what kinds of executive orders he might produce next.
In the meantime, the pandemic has reportedly forced significant delays into the processing of this year’s H-1B visas, according to U.S. Citizenship and Immigration Services (USCIS). “Beginning with the first day of filing, April 1, 2020, we will not immediately enter data for FY 2021 cap-subject petitions due to the COVID-19 pandemic and required health and safety protocols,” read the agency’s note. “Data entry and notice generation will be delayed until at least May 1, 2020.”
Although a record number of H-1B applications (275,000) were filed with USCIS’s new electronic pre-registration system for the 2020-21 fiscal year, the rate of H-1B denials has remained elevated for the duration of the Trump administration. For example, for all four quarters of fiscal year 2019, denial rates rose for H-1B petitions for initial employment. Consulting and “business services” firms that tend to heavily use the H-1B visa have been particularly hard-hit by this trend.
In other words, Trump’s initial immigration action ended up much more narrowly focused than some critics of the H-1B system might have hoped. However, the H-1B system as a whole still faces slowdowns from a variety of factors—which could complicate things for those companies that feel they need talent on the visa.
