What the freeze on foreign worker visas means for HR

President Trump's order will cause employers to look for ways to adjust. It won't be easy, say experts.
By: | July 2, 2020 • 6 min read
(Photo by Scott Olson/Getty Images)

Last month, President Donald Trump issued an executive order effectively freezing the hiring of foreign workers via the popular H-1B visa program. The decision, effective June 24, is bound to throw some sectors that depend on H-1B workers—tech and healthcare, primarily—for a talent loop.

According to the Migration Policy Institute, for example, about 219,000 temporary workers would be blocked by the executive order, ostensibly created to fill many of those openings with American workers during the economic downturn set in motion by the coronavirus pandemic.

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See also: Immigration reform’s effect on employers

Clete Samson, a partner with the law firm Kutak Rock, explains that the recent order temporarily (until Dec. 31, 2020, for now) restricts a U.S. company’s ability to hire and recruit foreign national workers to the U.S. using a new H-1B, H-2B, L or J visa.

“The order will create an obstacle for U.S. companies in their ability to compete on a global scale in a variety of tech and other industries,” Samson says. “It could require employers to consider moving certain positions or job functions to workers living and working remotely abroad. It also may cause employers to restructure their hiring to physically employ more individuals overseas.”

Ran Harnevo, CEO of Homeis, a tech company that works with hundreds of thousands of immigrants in the U.S., says the COVID-19 pandemic in the U.S has proven how essential immigrants are to the fabric of the country and its workforce. Yet, Harnevo says, the Trump administration continues to create new regulations to push them out and increase their hardship.

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“Immigrant groups, from asylum seekers to tech workers, are under constant attack—and they are tired of President Trump’s continuous fear mongering and scare tactics,” he says. “He has shattered their American dream, and now they have nowhere to turn.”

Harnevo adds that foreign workers are the backbone of the nation’s largest tech leaders, such as Facebook and Google, yet these giants were slow to respond to the executive order—though they have registered their disapproval via Twitter and other social media platforms. Even the U.S. Chamber of Commerce posted a statement pushing back on the order.

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“The facts prove that, by barring entry to H-1B and other types of applicants, some of whom have lived in the U.S for many years, the U.S. will lose and other countries stand to gain,” Harnevo says. If banned entry, he adds, international students, skilled tech workers and entrepreneurs will simply take their economic contributions and innovations to other countries.

Doug Rand, co-founder of Boundless Immigration and former Obama policy director, says the actions by the White House have “nothing to do” with the state of the economy.

“The Trump administration has been ratcheting up work visa restrictions from the beginning, when unemployment was low,” he says. “The pandemic is just a pretext to continue pursuing an extreme agenda of restriction that most Americans oppose.”

Xiao Wang, CEO and Boundless Immigration co-founder, adds that, at some point, America needs to reconcile who it wants to be as a country.

“Barring or kicking out the best and brightest around the world who have studied in our schools and wish to establish their lives in this country is a direct way to hurt our companies and economy,” he says.

Raymond Lahoud, a partner with and chair of Norris McLaughlin’s Immigration Law practice, says his firm is advising clients to consider a couple of options to adapt to this change in workforce availability. One is to double down on efforts to find U.S.-based workers or other H-1B visa holders already in the country who may have lost their jobs due to the pandemic. The other option is to “think creatively” about how to reclassify the employees who can’t get the H-1B through another visa type, like the TN and E visas, for example.

“We’ve been helping several corporate clients with that approach,” he says.

Turning to the healthcare industry, arguably the second most-affected industry, Yova Borovska, a healthcare immigration attorney at Buchan Ingersoll & Rooney, says while the executive order provides for certain discretionary exceptions when the entry will be in the “national interest,” it’s uncertain what the process, timeline and standard to apply for such an exception would be.

Borovska has seen firsthand that non-U.S. citizens applying for H-1B visas as medical residents, fellows or physicians are still being denied access into the country even after making “compelling arguments” that they’re planning to assist with COVID-19.

“As the volume of COVID-19 cases continue to rise across the U.S.—and should USCIS continue to deny H-1B visas for healthcare workers on the frontlines—hospitals could be facing an upcoming staffing crisis,” Borovska says.

While Borovska says there is no clear way yet to quantify the potential damage, healthcare employers can plan ahead for delays in their new-hire start dates and come up with ways to mitigate this internally by shifting workloads.

“They can also explore alternatives to the suspended categories,” she says. For example, some healthcare workers may, in some cases, qualify under the O-1 category designed for individuals with extraordinary ability.

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Vince Cordova, a partner at Mercer, says virtual assignments and remote work opportunities for transfers and new hires could be solutions for employers to help offset potential loss of talent without the H-1B and other related visa holders. Also, he adds, organizations should have a framework for workplace flexibility that enhances the employee-value proposition and incorporates an employee development and career-growth perspective.

Additionally, organizations might need to rely more heavily on digital collaboration. As a result, they may have to explore new technologies that might be more appropriate for their current and future working environment.

“Just as important, affected employers should consider how they can build employees’ digital capabilities so they can put these technologies to better use on a daily basis,” Cordova says.

Tom Starner is a freelance writer based in Philadelphia who has been covering the human resource space and all of its component processes for over two decades. He can be reached at hreletters@lrp.com.