Analysis

Ban On Work Visas Could Draw International Blowback

By Suzanne Monyak
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Law360 (June 23, 2020, 10:31 PM EDT) -- President Donald Trump's proclamation blocking foreign executives and other skilled workers from moving to the U.S. this year could deter multinational companies from setting up shop in the country and threaten jobs for Americans working abroad.

Administration officials said the Monday order — an expansion of the president's earlier temporary ban on new green cards abroad — would open up more jobs for Americans who found themselves unemployed as a result of the coronavirus pandemic.

But with limited exceptions for crucial employees, the restrictions on H-1B specialty occupation visas and L visas for internal transfer of foreign executives could have the opposite effect by pushing more job opportunities abroad to countries, like Canada, with more welcoming immigration systems, attorneys said

"Companies are going to rethink where they make their investments, how they figure out their strategy if there's business uncertainty as to whether they can bring in their own supervisors," said Davis Bae, co-chair of Fisher Phillips' global immigration group. "There is no real national interest in doing this."

Greg Siskind, a partner at Tennessee-based Siskind Susser PC and member of the American Immigration Lawyers Association's board of governors, said that restricting L visas in particular is like "exploding a nuclear bomb."

"It's absolutely unbelievable that you would say to Volkswagen, that employs thousands of people in Chattanooga, that their senior executives are not welcome in the United States to monitor their investments," he said.

The action could also leave the U.S. companies and Americans working abroad vulnerable to tit-for-tat visa limits from other countries under the principle of visa reciprocity, attorneys said.

"I will not be utterly shocked if other countries around the world take some retaliatory measures against the United States because of this," said Nandini Nair, a partner in Greenspoon Marder LLP's immigration practice group.

The proclamation, signed Monday after weeks of leaks and rumors, spurred panic and confusion among immigrants and their employers as they hurried to determine if they, or any of their new hires, were covered.

Attorneys are still confused, for example, about whether Canadians are restricted under the proclamation's phrasing, since they don't require visa stamps to enter the U.S.

Ali Brodie, co-chair of Fox Rothschild LLP's immigration practice, told Law360 on Monday evening she had already started receiving messages from human resources and general counsel departments at companies that had hoped to bring on foreign workers

"All of a sudden, it was text messages, a million phone calls and emails. Right now, people are panicked," she said.

Some employers were immediately relieved to see that the proclamation only touched people outside the U.S. on the date it took effect, allowing them, for example, to continue onboarding recent graduates of U.S. schools, according to Cynthia Lange of Fragomen, Del Rey, Bernsen & Loewy LLP, who represents technology companies.

But the inclusion of the L visa without exemptions for high-level executives came as a surprise to some attorneys who had expected any suspension to at least shield foreigners coming to the U.S. on an L-1A, reserved for foreign executives and managers moving within the company from a location abroad.

"When I saw that, I had to look at it twice," Nair said.

The administration's targeting of L visas "seems odd and unprecedented and really misplaced for a lot of our clients," Lange said. She noted that the L visa is used to bring in CEOs and other executives to lead U.S. locations for foreign companies, which typically create jobs locally.

The Trump administration had included exceptions in some of the other restricted visa categories. For instance, the ban only covers H-2B visas for non-agricultural seasonal labor, without touching H-2A farm worker visas. And within the H-2B suspension, seafood and food processing workers are shielded.

"Maybe [executives] are just collateral damage in the administration's war against companies from bringing foreigners into the United States. It's more like a bludgeon instead of surgically attempting to identify," Lange said.

While administration officials have claimed that the visa suspension will free up over half a million jobs for Americans, experts stress that immigration and job availability is not a zero-sum game. Additionally, the visa restrictions on high-skilled immigration will disproportionately affect the technology sector, which has maintained low U.S. unemployment despite the pandemic.

Moreover, international companies would be unlikely to replace their own foreign CEO with an American, attorneys said.

"It boggles the mind to think that the expertise and sophistication of executives and managers, who have been employed by the organization, and the specialized knowledge of essential workers with that level of expertise, can be replaced by a U.S. worker," said Angelo Paparelli, a partner at Seyfarth Shaw LLP. "No amount of education can substitute for that level of internal experience."

Attorneys also told Law360 that their clients are not eager to rescind offers for foreign workers selected in the H-1B lottery that the company had hand-picked, recruited and, for some, already filed full visa applications for, particularly as many companies start to envision a future of remote work.

And if international companies decide the restrictions aren't worth it and take their business outside the U.S., it could result in fewer, not more, jobs for Americans. Paparelli compared the proclamation to attempting to solve the U.S.' current economic woes with the medieval practice of bloodletting.

"While other countries are making their destinations more attractive, we're basically pushing people out," he said. "And if that won't affect U.S. workers adversely, I don't know what will."

Beyond hurting the U.S. economy, the restrictions could also cause a rift internationally.

The administration appeared to steer clear of the visas specifically provided for by global treaties, including the TN visa for Mexican and Canadian professionals included in the U.S.-Mexico-Canada agreement, as well as the E treaty investor visas.

But Siskind said that the restrictions may still run afoul of the General Agreement on Trade in Services, in which the U.S. committed to providing temporary visas for certain specialty workers and internal company transfers.

The threat of retaliatory visa measures as a result could further worsen U.S. job losses, he said.

"I'm afraid any jobs U.S. workers get may be more than made up for with overseas Americans losing theirs," Siskind said.

The proclamation's shaky economic justification, and potential conflict with global treaties, could ultimately be its downfall in court, attorneys said. The proclamation has already drawn opposition from tech giants including Apple Inc. and Google LLC, and will likely face litigation.

But even if the suspension is blocked in court, these restrictions may only be the tip of the iceberg, attorneys warned, as Trump eyes more aggressive regulatory changes to the immigration system ahead of the upcoming election.

In addition to temporarily suspending visas, the president is also calling for sweeping changes to the H-1B visa system, which caps specialty occupation visas at 85,000 annually, including by raising the salary minimum and offering the slots based on the highest salary offers, rather than random lottery.

"This is the tip of the spear," Bae said. "As the election comes along, as he gets into a position where he needs to come down hard on immigration, taking a protectionist point of view, what's going to end up happening is he's going to try to push the narrative to say that these foreign nationals are taking U.S. jobs."

He continued, "This really is a political move, and it's a shameful one."

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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