Under pressure, Trump team backs off proposal to cull foreign tech workforce
by Foster LLP, on News
By Franco Ordonez, McClatchy DC Bureau
WASHINGTON – Under intense pressure from the business and technology communities, the Trump administration appears to be backing away from a policy change that could have forced foreign tech workers out of the country.
The U.S. Citizenship and Immigration Services, part of the Department of Homeland Security, on Monday said it was still conducting a thorough review of worker visa programs. But after McClatchy reported over New Year’s weekend that the agency was weighing a specific policy shift that would prevent foreign tech industry workers from keeping their visas longer than six years, the agency reversed course on that proposal.
“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment based visa programs,” Jonathan Withington, chief of media relations for USCIS, said Monday.
“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”
Withington said that USCIS was never considering such a policy change and that “any suggestion that USCIS changed its position because of pressure is absolutely false.”
But multiple sources with direct knowledge of the conversations inside the department said that was not true, and that the administration had shifted over the last two weeks in response to the swift and harsh reaction from the business community.
Indeed, the tech industry and some lawmakers were stunned last week to learn the administration was considering a measure that would prevent hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications were pending. The possible change, part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign, would reinterpret discretion given to the administration under the American Competitiveness in the 21st Century Act.
Reps. Kevin Yoder, a Kansas Republican, and Tulsi Gabbard, a Democrat from Hawaii, sent a letter to Trump, obtained by McClatchy, urging him “not to deport H-1B holders awaiting permanent residency processing.”
“We strongly believe this action would be harmful to the American economy, credibility, and relations with India and the Indian-American community,” wrote Yoder and Gabbard on Friday. Both are members of the Congressional Caucus on India and Indian Americans.
The U.S. Chamber of Commerce warned it would be “tremendously bad policy” to tell highly skilled people they are not welcome to stay in the United States.
And the Indian tech industry, backed up by the Indian government, quickly began to mobilize. Groups that represent Indian companies and workers — such as the National Association of Software and Services Companies, Immigration Voice and Compete America — started deploying lobbyists and other representatives at both ends of Pennsylvania Avenue to argue against possible regulatory changes that could prevent foreign tech industry workers from keeping their visas longer than six years, according to U.S. and India-based industry sources and worker advocates familiar with the plans.
“Nobody’s happy with it,” said an industry source. “Everyone’s trying to figure out exactly what’s going on and also trying to explain to the administration, if they’re thinking of doing this, it’s a horrible idea and these are the reasons why.”
One source familiar with the discussions said DHS reached out to lawyers to verify claims by immigration attorneys about the illegality of the proposed change and were told that even if the administration was correct, another provision would still likely allow foreign workers to keep their visas in one-year increments.
The administration’s decision to drop consideration of the policy shift was met with cheers by foreign-worker representatives.
“This a major accomplishment for everyone who came together to express their outrage about a cruel and vindictive policy proposal,” said Leon Fresco, who served as a deputy assistant attorney general for the Justice Department in the Obama administration and who now represent H-1B workers.
The H-1B program, created by the Immigration Act of 1990, was intended to allow American companies to hire foreign workers with specialized skills that firms could not find in the United States. Tech giants such as Facebook and Microsoft have long argued that the 85,000 annual cap on these visas is too low and that they need to bring in more foreign tech workers because they can’t find enough highly-skilled American workers.
But the program has been controversial, as companies such as Disney, Southern California Edison and the University of California, San Francisco have been accused of using the program to lay off American IT workers. In some of the more egregious cases, the American tech workers were called on to help train the foreign replacements.
More than half of all H-1B visas have been awarded to Indian nationals, according to the Pew Research Center. So any change like this would have a particular impact on that community of foreign workers.
The Indian Minister of Foreign Affairs and Embassy did not respond to questions. But industry sources working the issue in Washington say the government was working “hand and glove” with industry against any possible changes. “They’re deeply concerned about this issue,” said a U.S. source who has been briefed on Indian government’s worries. “You see the whole IT industry in India is dependent on the work that they get from the U.S.”
Industry insiders say the idea of forcing tech workers, some of whom have been here for over a decade to leave, seems so outrageous that it should be easy to prove it wasn’t the intent of Congress when lawmakers passed the legislation. But they’ve grown increasingly concerned as Trump’s immigration team has sought to carry out what they regard as onerous measures intended to drive out foreign workers.
Citing a proposal to eliminate the work authorization for the spouses of H-1B workers, one industry source said the Trump team was already taking steps to make the program so burdensome that it could potentially accomplish the same goal even if regulations are not changed.
“They’re trying to encourage these people to leave our country,” the source said.
Trump’s senior policy adviser Stephen Miller and L. Francis Cissna, the director of the USCIS, have long worked to clamp down on the program. Before the White House, Miller worked for then-Sen. Jeff Sessions, a Republican from Alabama who during the 2016 campaign raised the idea of ending the H-1B program. (Sessions is now Trump’s attorney general.)
Cissna previously worked for Sen. Charles Grassley, an Iowa Republican., who has introduced several bipartisan bills to pair down the program. At a 2015 conference organized by the Center for Immigration Studies, Cissna said Grassley’s legislation would “addresses this whole nightmare.”
“We address numerous other elements of monkey business and shenanigans in this program that we think ought to stop,” Cissna said during the conference.