Legal speculation about recent visa bans

I previously published an FAQ about President Trump’s immigrant visa ban and work visa ban. You can read it here. The detailed answers to the questions therein are given on my US immigration FAQ on GitHub and backed by authoritative sources and reasoning. But some people also have questions whose answers are of a more speculative nature. This blog post addresses those questions.

Q1: What does section 5(b) of the work visa ban mean?

A1: Section 5(b) refers to the requirements of the Immigration and Nationality Act that employers petitioning for a green card in the EB3 or EB2 categories (excepting National Interest Waiver applicants) must obtain a labor certification (LC/PERM) and employers petitioning for H-1B status must file an labor condition application (LCA).

For an LC to be approved, the employer must demonstrate that there are not sufficient workers who are able, willing, qualified, and available (thus necessitating the importation of a permanent foreign worker) and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed workers in the US. For an LCA to be approved, the employer must demonstrate that it is offering at least the prevailing wage and that the H-1B worker will be employed under working conditions that will not adversely affect the working conditions of other workers similarly employed. The Department of Labor shall determine, in both cases, whether the employer has met the burden of proof.

Thus, the meaning of section 5(b) of the proclamation is that Trump is not sure whether the existing LC/LCA process is sufficiently stringent to guarantee that the EB2/EB3/H-1B programs do not disadvantage US workers in violation of the INA and that he would like the Department of Labor and DHS to consider whether new, more stringent regulations should be promulgated governing the LC and LCA/I-129 processes.

Q2: If Trump does publish new LC/LCA regulations, can they be used to retroactively revoke green cards and H-1B status?

A2: Although the text does extend to aliens who have been admittedpursuant to an EB-2 or EB-3 immigrant visa, there is absolutely no chance that the courts will allow Trump to deport people who already have green cards just because he thinks that the previous regulations that allowed them to obtain a labor certification were not stringent enough, and I believe that Trump knows that, and he will not try to fight a battle that he cannot win.

In the case of H-1B workers, I think there is some legal argument that Trump could force some of them to leave if he believes that the LCA/I-129 process was not stringent enough, by ordering the Secretary of State to issue new regulations to revoke their visas under INA 221(i) and INA 237(a)(1)(B). I don’t expect him to actually do this, however, because it would be much easier to just deny extensions based on the new LCA/I-129 regulations. This would have a measurable effect of gradually reducing the number of H-1B workers in the US without going through protracted litigation related to the use of INA 221(i) and INA 237(a)(1)(B).

Q3: If Trump does publish new LC regulations, can he require I-485 applicants to undergo the new process prior to approval?

A3: If the regulation required aliens who had already submitted form I-485 (prior to the new regulations going into effect) to undergo recertification prior to I-485 approval, I think there’s about a 75% chance that such a provision would be illegal. Under AC21 106(c) (INA 204(j)/8 USC 1154(j)), an alien who has already filed an I-485 may, after 180 days have elapsed, switch to another job in the same occupation or a similar occupation without having to obtain a new labor certification. I think there’s a strong argument that if Congress has mandated that the alien can even take up a different job without a new labor market test, then the employer certainly cannot be required to perform a second labor market test for the same alien when it has already done so in the past. I don’t think such a requirement would be legal even if it contained an 180-day exemption. The reason for the 180-day waiting period is to merely ensure that the alien acted in good faith at the time of filing, and did not use that particular employer just so they could jump to another employer without redoing the green card process. If an alien whose I-485 had been pending for any length of time, whether greater or less than 180 days, were forced to undergo labor certification a second time prior to approval, I think that would violate the Congressional intent behind AC21.

Q4: If Trump does publish new LC regulations, can he use them to revoke I-140s that have already been approved, or require a new I-140 to be approved before proceeding to adjustment of status or immigrant visa processing?

A4: These questions seem to be closely related. I would guess that the courts would either allow both, or allow neither. I am not familiar enough with the Administrative Procedure Act, the applicable jurisprudence regarding retroactive application of regulations, and so on to even venture a vague guess as to whether the courts could strike down such regulations on those grounds. I did, however, find one news article in which an immigration lawyer argues that such regulations would violate INA 212(a)(5)(A) and AC21.

Q5: How is Trump’s proposal to allocate H-1B visas based on salary going to work?

A5: It has been reported that Trump wants to scrap the H-1B lottery and replace it with a system where the visas are allocated based on highest salary. No details of the plan have been released yet. The administration has not even said whether the system would attempt to normalize salary according to the geographical location and the occupation. (If such normalization is not done, then almost all of the visas would go to tech companies in Silicon Valley, Seattle, and NYC; other regions and industries, which also need H-1B workers, would not be able to compete.) In any case, regardless of how the system works, it is not clear whether it would be legal. The INA does not allow the limited pool of H-1B visas to be distributed based on salary; it simply specifies that once the quota runs out for a given fiscal year, no more aliens can be issued H-1B visas or H-1B status during that fiscal year. Thus, in the past, employers who did not file an H-1B petition early enough would not be able to import their desired candidate until the new quota became available for the following fiscal year, since all the visas would have been consumed already. Eventually, it got to the point where the number of petitions that were filed within the first week of the filing window was already enough to use up the entire quota for the year, so a random lottery system was introduced. One can justify the lottery as follows: It would be sort of silly if one petition that was delivered in the mail to USCIS on April 1st, 1 hour before another petition, received precedence on that basis. So instead, USCIS will take all petitions received in the first week of the filing window, and process them according to the legal fiction that some of them are randomly determined to have arrived earlier than others. If the Trump administration instead decided that the petitions with higher salary should be considered to have arrived earlier than others, he would be essentially introducing an adjudicative criterion that has no basis in the INA, so the courts probably would not allow this change, but I am not totally sure.

Q6: How likely is it that litigation against the immigrant visa ban and the work visa ban will succeed?

A6: In the immigrant visa ban case, the argument is essentially that Congress intended for a certain number of immigrant visas to be available per year in each category for family reunification, employment, and diversity, and that Trump should not be allowed to unilaterally reduce those numbers to zero using INA 212(f). My personal opinion is that the Supreme Court will let him get away with it based on the same reasoning as in the Trump v. Hawaii case, but that is just my personal speculation, and many actual lawyers disagree. In the work visa ban case, there are similar arguments, but there is also an additional argument that the ban violates the General Agreement on Trade in Services (GATS). The relationship between GATS and H-1B and L-1 visas is discussed here. However, it is not clear whether GATS is binding as a matter of domestic law. This issue is way beyond my depth, so I can’t really estimate the probability of this legal argument working, other than to say that it’s greater than zero.

Q7: What happened to Trump’s proposal to raise the fees for H-1B petitions to $20,000?

A7: The existence of such a proposal is merely speculative. Trump has not indicated that he plans on taking such an action. If he did attempt to do so, it could be argued that it would violate GATS (see previous Q/A). It could also be argued to be subverting Congressional intent of allowing the visas to be issued. (For example, if Trump made the fee $10 million, then it would obviously be an attempt to indirectly ban the approval of H-1B petitions, so the courts would not allow that. Whether they would allow a $20,000 fee is not totally clear, but I’m leaning toward no. On the other hand, a small fee increase would be completely legal, since Trump could argue that its purpose is to allow USCIS to recover the costs associated with whatever extreme vetting he wants them to do.)

Q8: What happened to Trump’s proposal to ban H-1B extensions for jobs that pay level 1 wages?

A8: Again, the existence of such a proposal, to not grant H-1B extensions for workers being paid level 1 wages unless their employer offered at least level 2 wages in the extension petition, is merely speculative. I think there’s about a 90% chance that such a regulation would be illegal, if it were to be published. Congress has set the criteria for aliens to obtain H-1B status, and the executive branch is responsible for devising a process, and promulgating regulations, to determine whether aliens seeking H-1B status meet those criteria. The executive has wide latitude in doing so, but may not invent new regulatory criteria out of thin air that are unrelated to the statutory criteria set by Congress. If Trump finds that allowing H-1B workers to remain at level 1 wages in a particular area, for a particular occupation, adversely affects US workers in that occupation in that area, then perhaps it would be within his authority to order the Department of Labor to not approve such extensions for that particular occupation, in that particular geographical area, pursuant to INA 212(n)(1)(A). But I think the statute requires such a determination to be made individually with respect to each occupation and each geographical area; Trump cannot thus issue a blanket finding with respect to level 1 wages across all areas and occupations.

Q9: Is Trump still planning to rescind the H-4 EAD rule?

A9: No word on that, but probably.

Q10: What about the proposed changes to the OPT program?

A10: There has been speculation that Trump is planning to eliminate or shorten the STEM OPT extension, or to limit it to particular sectors, or to limit it to students who graduate at the top of their class. Since the STEM OPT extension was created purely by regulation, and not statute, these changes would be fully within Trump’s authority to enact. However, until he actually publishes the regulations, we won’t know whether he is going to do it at all, and if so, what the provisions are.

Q11: Could Trump stop issuing EADs to individuals with pending Adjustment of Status applications, thus eliminating the employment authorization of tens of thousands of aliens who are in the backlog waiting for a green card?

A11: Yes, that’s a regulatory change that would be within his authority to enact, since the AOS EAD was created by regulation in 1981 and not by statute. The notice in the Federal Register explained that these individuals will receive unrestricted employment authorization soon anyway (since they will have a green card), so that it made sense for INS to grant some such individuals (who might not otherwise have a means of obtaining employment authorization for supporting themselves in the US) an EAD at its own discretion. But Trump could very well argue that such discretion should generally not be exercised favourably due to the current unemployment crisis, and use that as a justification for eliminating the AOS EAD at least temporarily (though, as the Supreme Court’s recent DACA decision indicated, he would at least need to consider reliance interests as part of the rulemaking process). Despite the fact that Trump could very well do this, I currently don’t expect him to. Even the speculations based on supposed leaks of would be in the work visa ban did not suggest that Trump was considering such an action.

About Brian

Hi! I'm Brian Bi. As of November 2014 I live in Sunnyvale, California, USA and I'm a software engineer at Google. Besides code, I also like math, physics, chemistry, and some other miscellaneous things.
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