Insight

The Secret War against Legal Immigration

The way the existing laws and regulations are being applied is clearly changing under the Buy American, Hire American Executive Order.

Legal Immigration
Leila Freijy

Leila Freijy

January 29, 2018 11:31 AM

While coverage of the war on illegal immigration appears in the media on a daily basis with plenty of news about the “Dreamers” and building the wall, there is another secret war being waged against legal immigration, and it impacts U.S. businesses and our economy.

There have been no changes in U.S. immigration laws or regulations since the start of the new administration; however, the way the existing laws and regulations are being applied is clearly changing under the Buy American, Hire American Executive Order that was issued on April 18, 2017.

In a clear attempt to discourage U.S. employers from hiring foreign workers, the U.S. Citizenship and Immigration Services (USCIS) has been introducing roadblocks designed to increase processing times and denials of employment-based petitions, leading to escalating immigration costs, uncertainty, and frustration.

With a 4.1 percent unemployment rate in the U.S., which is widely considered to be full employment, U.S. employers are not choosing to hire foreign workers over Americans. They are hiring foreign workers because there aren’t enough U.S. workers in STEM fields (science, technology, engineering, and math). I don’t know a single employer who prefers to pay thousands of dollars to the USCIS and their immigration attorneys and cope with the uncertainty of the immigration process, which can drag on for well over a decade in many cases, rather than hire a qualified U.S. worker.

However, faced with a lack of qualified U.S. workers in STEM fields, employers are left with few options for sustaining and growing their businesses other than to sponsor foreign engineers and IT professionals or off-shore their engineering work to India or China.

Every engineering position that must be off-shored takes U.S. jobs with it. Hiring 20 engineers abroad requires less office space and office furniture in the U.S.; fewer computers, printers, copiers, phones, and office supplies; and not as many support staff. Even nearby restaurants and shops may find themselves requiring fewer employees. You can begin to see the impact that off-shoring will have on the U.S. economy, not to mention the state and federal income taxes that will be forfeited.

On March 31, 2017, the USCIS announced that it no longer considers computer programming to be a “specialty occupation” eligible for H-1B visa status. To be fair, it has long been debated whether computer programming qualifies as a specialty occupation; however, the USCIS has been using the new pronouncement as an excuse to deny H-1B petitions for other IT positions, such as software developers and software engineers, leaving employers without the high-tech talent that they need after spending thousands of dollars in immigration fees and costs.

In mid-2017, the USCIS started questioning whether entry-level positions, where the employee is to be paid a Level 1 wage (the lowest of four wage levels established for each occupation), are considered specialty occupations. Essentially, the USCIS is taking the position that an entry-level engineer or medical doctor is not functioning as a professional. Not only is this ridiculous, but it effectively changes the four-level wage structure mandated by Congress into a three-level wage structure. In some cases, the USCIS has even been challenging positions at a Level 2 wage.

In October 2017, the USCIS announced that it was departing from its long-standing policy of giving deference to its prior decisions. So, if the USCIS previously granted employment authorization to Raj Kumar to serve as a mechanical engineer for Acme Company, it is now under no obligation to approve an extension even if there had been no changes in his employment and no indication of fraud or misrepresentation in the earlier petition. The only explanation for this shift is to allow the USCIS to more easily deny petitions that it had previously approved.

There are many other changes that have been proposed or rumored. In fall 2017, the Department of Homeland Security published a Notice of Proposed Rule Making to end the H-4 EAD program that permits the spouses of certain H-1B workers to apply for U.S. employment authorization themselves. Since February 2015, when the H-4 EAD program was first authorized, U.S. employers have hired thousands of H-4 EAD spouses, many of whom are highly educated. Because qualified H-4 spouses typically apply for their Employment Authorization Documents (EADs) themselves, there are no immigration-related costs to their employers.

The result of these policies restricting legal, business immigration is that U.S. companies and the U.S. economy will be the losers. Over the past year, at least six of my clients have chosen to leave the U.S. and immigrate with their families to Canada or Europe. These are not “illegal aliens” who have elected to self-deport. These are legally employed engineers with Master’s degrees from U.S. universities.

On November 13, 2017, The New York Times published the results of a survey conducted of 500 U.S. universities concluding that foreign student enrollment for the fall 2017 semester decreased by 7 percent over the previous year (about 75,000 fewer students). Foreign students, who typically come to the U.S. to pursue advanced degrees in STEM fields account for $39 billion annually in spending toward the U.S. economy, according to the Times article. In addition to paying out-of-state or international tuition that is a boon to our universities, foreign students rent apartments and buy homes; buy cars, phones, furniture, and clothing; spend money in grocery stores and restaurants; and engage in tourism.

The anti-immigration policies secretly being implemented under the Buy American, Hire American directive will not result in either. Rather than buying American, millions of dollars will leave our economy to be gladly received by Canada, Europe, and Australia. Rather than hiring American, high-tech positions will be off-shored, resulting in an increase in U.S. unemployment as we shed jobs for support staff, construction and automotive jobs, and retail and restaurant workers.

---------------------------

Leila Freijy has been practicing U.S. immigration law in Michigan since January 1999 and has been listed in The Best Lawyers in America© every year since 2007. Her practice focuses on employment- and family-based immigration matters.

Related Articles

Interagency Cooperation: Raising the Bar for Immigration Compliance


by Kathleen Campbell Walker

Stove-piped legal representation is not advisable (e.g., only focusing on one agency segment or one portion of a filing process).

Immigration Compliance

The Trump Administration’s Attack on Legal Immigration


by Bennett R. Savitz

The adjudication strategy achieved the change the Trump administration wanted to make to the H-1B program without having to amend the regulations.

Legal Immigration – Trump

The Price of Admission


by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

Loophole or Fatal Flaw?


by Joseph Begonis

Canada's Best Lawyers share their thoughts on the Safe Third Country Agreement

What Is the Safe Third Country Agreement?

Make the Workforce American Again


by Michael J. Wildes

The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations, including jobs in technology, engineering, science, architecture, accounting, and business.

Make the Workforce American Again

Chain Migration Solutions Desperately in Search of a Problem


by Aaron C. Hall

The White House insists that any new law giving Dreamers a permanent place in the United States also stop what it refers to as the chain migration problem.

Chain Migration

H-1B Applications: Proactive Steps in 2018


by Brad J. Hendrick

Last year, USCIS received approximately 199,000 applications for the 85,000 H-1B visas allocated each year.

H-1B Applications

Trump Administration’s Termination of DACA, TPS, and H-4 EAD Immigration Programs Could Leave Employers in a Lurch


by Ann Massey Badmus

Several immigration programs that have authorized over a million immigrant workers are expected to end in 2018 and 2019.

DACA, TPS, and H-4 EAD

Immigration Worksite Compliance Issues for Employers


by Maria I. Casablanca

Immigration worksite enforcement has become a balancing act between verifying eligibility to work and avoiding discrimination; thus it has merged two fields of law: labor and employment law with immigration and nationality law.

Immigration Worksite Compliance

Smart Policy and Smart Compassion


by David P. Berry

Why it makes sense to protect the Dreamers.

Dreamers

H-1B Planning for Fiscal Year 2019


by Lisa Koenig

Employers should be prepared to pivot.

H1-B Planning

Trends in EB1 Self-Sponsored Extraordinary Ability Permanent Residence Cases for Researchers


by Douglas J. Halpert

Both the “mirror test” and the USCIS regulatory standard impose exacting standards subject to interpretation.

EB1 Self-Sponsored Extraordinary Ability Perm

Trump and Immigration: Separating Truth from Fiction


by Harlan G. York

Deportations aren’t up, but the people who are being deported are more “newsworthy.”

Trump and Immigration

Dilip Patel, 2018 "Lawyer of the Year" for Immigration Law


by Nicole Ortiz

Dilip Patel of Dilip Patel Law Firm was named 2018 "Lawyer of the Year" in Tampa for Immigration Law.

Dilip Patel LOTY

In the News: South Florida


by Compiled by Nicole Ortiz

A summary of newsworthy content from South Florida lawyers and law firms.

South Florida In the News 2018

In the News: Southern California


by Compiled by Nicole Ortiz

A summary of newsworthy content from Southern California lawyers and law firms.

Southern California In the News

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Unwrapping Shrinkflation


by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil