President Donald Trump signed an executive order April 22 that restricted immigration — but didn’t completely ban it, as his tweet announcing the policy two days earlier suggested it might. The outlook, according to multiple sources well-versed in labor and immigration law, is that recruiting of foreign tech workers will be weakened.
"Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak," the order said, adding that the immigration Trump is prohibiting is "detrimental to the interests of the United States." That language references the law granting him authority to implement this ban and was also the reasoning for the administration’s 2017 "Muslim ban," according to Sahil Kapur of NBC News.
The executive order took effect at 11:59 p.m. Eastern time on April 23 and lasts for 60 days. Within 50 days, the U.S. Department of Homeland Security will make a recommendation as to whether the restrictions should continue. It "appears to be a very limited action that could likely survive U.S. Supreme Court scrutiny," Rebecca Bernhard, a partner at the international law firm Dorsey & Whitney, said in a statement emailed to HR Dive.
The order temporarily prohibits individuals outside the U.S. from seeking permanent residency through the green card process. It also bars green card holders from sponsoring a spouse or child for permanent residency and prohibits individuals from receiving green cards to enter the country through employment or exceptional ability.
"These individuals have, in most cases, already gone through long, costly, and highly detailed application processes and are at the end of the process, waiting only for the green card," Diane Hernandez, an attorney at the national law firm Hall Estill, said in an emailed statement. "It is possible that the administration has purposely limited this suspension to those seeking permanent residency and specifically not temporary visas such as H-1Bs because it knows, or has been advised, that suspending the H-1B program at this time would be catastrophic for many industries," Hernandez added.
Under current emergency travel restrictions due to the novel coronavirus pandemic, the U.S. government has already paused its visa process and is turning away people at the borders. However, if these policies live on after pandemic-related travel restrictions are lifted, it may lead to a more closed off immigration program, which could ultimately lead to problems for industries that depend on skilled foreign workers.
Critics of the executive order include business leaders, advocacy groups and politicians.
"The idea that pausing the green card processes for highly qualified and thoroughly vetted individuals in order to protect U.S. jobs right now is misplaced," Hernandez said. "Especially since most of the jobs that have been lost to the COVID-19 crisis are in hospitality and similar industries – hotel jobs, restaurant workers, etc. These are not jobs that highly qualified immigrant workers come to the US to fill."
There are some exceptions to the green card restrictions. Medical professionals that are coming in to help the U.S. during COVID-19 are exempt and can bring family into the country; "agricultural workers on nonimmigrant (temporary) work visas" are also exempt, according to Bernhard. But the tech industry remains concerned, as Gary Shapiro, president and CEO, Consumer Technology Association, North America's largest technology trade association shared.
"The president's decision to suspend certain green card applications for 60 days could not come at a worse time," Shaprio said. "The White House should reconsider this executive order — or at the very least include an exception for technology workers. The White House should also refrain from pursuing future action to restrict access to temporary guest worker programs."
As the country focuses on recovery from the global pandemic, this severing of key talent pipelines could hurt technical industries already facing talent shortages, some say. "Whenever this country emerges from lockdown, we will need these highly qualified workers in industries such as healthcare, education, and STEM fields such as science and engineering to help grow the economy back to prior levels," Hernandez said. "Locking these people out will be a mistake."
