Are Employers The Next Act in Trump’s Immigration Circus?

The consummate bejeweled showman, Trump appears to have discovered Immigration as the perfect act for his three-ring circus of a presidency. He loves the big cheering crowds and holding the microphone as he announces the next big act.  The first act: ban refugees and Muslims. Clowns on tricycles chasing dwarf ponies.  The next act: demonize all immigrants, build walls, and immigration raids.  Send in the guy on stilts to try and put multicolored chickens back in their candy colored coop.  Should we expect that the next act will be to penalize US employers who require international talent to compete in a global market place?  Will this act be the man in the big suit being blindfolded as the clowns squirt him with water pistols and cause him to stumble around the ring with his foot stuck in a metal bucket?

A lifetime ago, at the end of January this year, USA Today ran an article titled Trump targets tech’s H-1B visa hiring tool.  The article was reporting on the contents of a draft Executive Order dated January 23, 2017.  It was never signed, but the unsigned order describes an executive policy of either making employment based visas subject to tighter regulations, or strictly limiting their use. For any employer or beneficiary who has been involved in the annual H-1B filing process; it is already a three-month long Cirque Du Soleil Act that culminates with a trapeze toss into a Federal Express box on March 31st. That’s because the application must be received on April 1st – not March 31st and not April 2nd – but April 1st.  A date that is also commonly known as “April Fools.” Yes, the day of office jokes and pranks.  Given the already circus act nature of the H-1B process, Trump doesn’t need to make it more absurd.

Last year USCIS reported on April 7th that it had received 236,000 applications for 65,000 available visas. Apparently, the current H-1B process is too loose and easy. In the Trump Administration’s mind, it cries out for a crackdown.  The proposed Executive Order, states “consider ways to make the process for allocating H-1B visas more efficient [Great! Wrong.] and ensure that the beneficiaries of the program are the best and brightest.” In clown-speak that means every application will be subject to a ruthless review and the discretionary decision of a government employee with no experience in the industry for which he is making the determination.  Employer’s and Immigration counsel are going to think about presenting H-1B applications in the style of a 3 minute Fox News segment. The emphasis will be on a dumbed down presentation with the voice of a center ring announcer from the World Wide Wrestling Federation.

The USA Today article also describes the pushback from Silicon Valley. It notes the detrimental effects on Tech Employer’s domestic operations.  We can only hope that someone will warn the Trump administration that the difference between Cupertino California becoming the next Detroit Michigan, is a matter of the type of weeds that will grow in the cracks of crumbling concrete. Moreover, given that Trump’s campaign was about bringing jobs back to America, he should understand that in Silcon Valley, the internet has made Thiruvananthapuram, India (Software Capital of the World) as close as Queens, New York is to Manhattan.

How should a company prepare for Trump’s next Circus act on employment based immigration? First, get its I-9 records in order, as well as its L-1 visa files (intercompany transfers), and its H-1Bs. The proposed Executive Order declares an immediate increase in worksite visits for L-1 sponsors. The urgency is puzzling, given that L-1s are used by international companies to move foreign based employees in out of the United States to support its U.S. operations.  Isn’t the goal to keep companies operating in the United States?  And moreover, what critical violations are they going to find?  An engineer living too long at a Hampton Inn?  Think of clowns with water pistols annoying businesses until they move operations elsewhere.  The foot in the metal bucket, however, may be the policy of work-site visits for all employment based visa programs. Companies are going to now need Immigration Counsel on retainer.  At a minimum, they are going to need their labor and employment attorneys to have training in Immigration law.  Speaking only for my law firm, profiting from nonsense has never been our professional goal. To be clear, this not a plug for our legal services. A good strategy for businesses is to identify and designate a human resource or other administrative professional as a point person to learn the Immigration law relevant and specific to its business. This will require hiring Immigration Counsel for a file and process review and to meet with that point person. Counsel should also be asked to do a personal on-site training with a company’s entire HR department to spread issue awareness. But after an initial training period, Immigration Counsel should only be needed for the occasional question and serious issues.  For a company of 50 – 100 employees this will likely result in a first-year cost of about $15,000.00 in both legal fees and expenses related to sending the designated company employee (the Point Person) to conferences and seminars. That’s a non-specific estimate and may be even less.  Future costs will be limited to the expense of seminars and trainings, unless specific legal issues arise that require an Counsel’s involvement.

Is there any good news?  Yes. Trump’s Immigration policy is fundamentally a Circus Act.  It is pure entertainment for his business-hating supporters.  To meaningful change the H-1B program, will require an Act of Congress. And while he can annoy businesses with the squirt guns of clowns; his work place enforcement just means Immigration lawyers get a few extra dollars and an HR person gets one more reason for a three o’clock migraine.  Both Republicans and Democrats like that businesses fund the economy, the Federal Treasury, and give people an opportunity to grow personally and professionally.  So, it is highly unlikely that either party will allow Trump to take his Circus Act on the road.

Like all Circuses it will end. The clowns will wipe their makeup off, the tent will be taken down, the trapeze artists will brush out their hair and put on a pair of jeans, and all the other unseen circus workers – who speak many different languages – will be called in to sweep up the mess like there was never a Circus in town.

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