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Trump pushes anti-immigrant policy into Biden term with extended freeze on H-1B and other work visas

Applicants will need to hold off until March at the earliest

President Trump has thrown his anti-immigrant policies into the incoming Biden administration's lap, extending a ban on work visas until March 31.

In a presidential proclamation issued on the last day of 2020, Trump claimed that allowing immigrants into the United States represented a threat to the country’s economic stability given the impact of the COVID-19 pandemic.

That argument, and various other explanations put forward by the Trump Administration to limit or halt work visas and green card applications, have been repeatedly and roundly dismissed by the courts on several occasions but the lame-duck President continues to push them even as his term ends later this month.


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“The effects of COVID-19 on the United States labor market and on the health of American communities is a matter of ongoing national concern, and the considerations present in Proclamations 10014 and 10052 have not been eliminated,” the statement signed by Trump read, referencing two previous executive orders issued in April and June last year.

This new proclamation simply extends the previous one, claiming that despite the introduction of several vaccines for COVID-19, “their effect on the labor market and community health has not yet been fully realized” and that “actions such as States’ continued imposition of restrictions on businesses still affect the number of workers that can be hired.”

Trump has made the work visa program – particularly the H-1B work visa frequently used by the tech industry – the focus of a personal campaign, combining both his anti-immigrant rhetoric and his animosity toward social media companies that have been flagging his posts as containing false information.

High cost

Despite his efforts having reportedly cost the US economy $100bn, the president’s efforts have been relentless, both through presidential decrees and rule changes pushed by the administration.

In October, new rules were introduced that abolished the H-1B lottery process and instead prioritized highly paid workers, creating high minimum wage requirements to be considered that pushed a minimum tech salary to $208,000: a move that was condemned by the tech industry as well as the broader business community and startups who said the move would destroy their market.

No less than 46 tech companies sued in November, challenging new rules in court. And the same week, the US Chamber of Commerce accused the government of ignoring an injunction against an earlier set of changes that had also tried to limit work visas.

Last month, a judge threw out the new rules, pointing out with some irritation that the case was a virtual repeat of a previous effort that had also been struck down. “The court once again confronts a challenge to the administration’s assertion that the H-1B visa program adversely affects American workers to such a degree that it must take immediate action,” noted federal district judge Jeffrey White in his ruling.


The very next day, the Department of Justice sued Facebook for what it alleged was unlawful discrimination against US workers, again on the basis of H-1B visas. The DoJ claimed that Facebook had set aside positions for temporary visa holders without considering US job seekers. "Our message to workers is clear: if companies deny employment opportunities by illegally preferring temporary visa holders, the Department of Justice will hold them accountable," it argued.

Those opposed to the visa-blocking measures - which includes huge swathes of the business world - argue that the work visa program is an essential part of the country’s global competitiveness and that many visas are issued to people because of a shortage of the requisite skills among US workers.

With this latest proclamation, Trump’s approach will be extended to two months’ into President Joe Biden’s term after the latter is inaugurated on January 20. Biden could issue his own decree nullifying the extension – and has vowed to undo at least some of Trump's immigration orders and other proclamations from his first day in office – though he is likely to have much more on his plate than a short-term limit on visas given the ongoing pandemic and a flawed roll-out of COVID-19 vaccines. It is, however, very unlikely President Biden will extend the rolling ban when it expires in March given his stance in favor of skilled immigration. ®

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