NH Futurecast: 2020 – Immigration

Shiva Karimi
Director, Corporate Department, and Chair, Immigration Practice Group, and Managing Director Boston Office
Published: Business NH Magazine
January 6, 2020

U.S. Businesses Struggle to Find Workers

For roughly the past year there have been a greater number of jobs available than workers seeking jobs. Employers are struggling to find workers to fill both skilled and unskilled positions.

The Effect of Employing Immigrants

Most economists today agree that increasing immigration helps the U.S. economy and greatly reduces labor shortages. Factually, it is known that immigrants make up approximately 27.6 million workers out of 161.4 million workers in the U.S.; The 8 million undocumented workers contribute approximately $12 billion in taxes each year; 55%, of the country’s $1 billion startup companies had at least one immigrant founder.

There is no doubt that immigrant workers are a large part of the solution to the labor shortage. However, finding immigrant workers with employment authorization, or obtaining employment authorization for them, is becoming increasingly challenging.

Employment Authorization for Foreign Born Workers

Employment authorization options continue to decrease. The purpose of the Buy American Hire American Executive Order was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” While the Order was vague, its implementation has had a devastating effect on employment authorization for foreigners.

H-1B: The H-1B visa is for workers with a minimum of a bachelor’s degree. These workers are required to be paid wages no less than the prevailing wage or the wage of their U.S. counterparts, whichever is higher. The H-1B denial rate was approximately 6% in 2015, and increased to over 24% in 2018.

L-1: The L-1 visa allows executives, managers, and employees with specialized knowledge to transfer from a foreign entity to a U.S. affiliate. The L-1 denial rate increased from roughly 16% in 2015 to over 20% in 2018. However, some countries, like India, have a much higher denial rate.

H-4 EAD: H-4 visas are for spouses of H-1B visa holders. These individuals have historically been ineligible for Employment Authorization (EAD). In 2015, certain H-4 spouses became eligible for EADs, however, in 2017, the administration proposed an end to the benefit.

EAD’s for Students: Foreign students are eligible for an EAD upon completion of a degree program. As of September, 2019, new guidance has placed restrictions on this employment. Additionally, in some situations, students who receive Curricular Practical Training (CPT) employment authorization for more than 12 months may be ineligible to receive post-completion EAD.

DACA: With the implementation of DACA, hundreds of thousands of individuals who arrived in the U.S. as children obtained employment authorization. Now, the government is attempting to terminate the program. Although litigation is pending, it is unclear whether this program will continue.

Entrepreneur visa: In 2017, the Department of Homeland Security published a rule to allow immigrants entrepreneurs an opportunity to develop and grow businesses in the U.S. Litigation is pending, but DHS is in the process of publishing a notice to remove the rule.

EAD processing times: The processing times for all categories of EADs have increased so dramatically, that many are unable to maintain authorization without significant gaps. Regulations previously required USCIS to adjudicate EADs within 90 days, or issue an interim EAD, but both of these safeguards have been removed. EAD processing times are now at crisis levels, in many cases taking between 5 to 9 months for approval, and often longer.

TPS employment: Temporary Protected Status (TPS) recipients are generally eligible for employment authorization. The automatic extension of employment authorization of certain TPS recipients was to expire in 2020, but has now been extended through 2021.  Since the U.S. government has sought to terminate TPS for certain countries, the ultimate fate of TPS recipients remains unknown.

An increase in foreign workers would significantly help U.S. businesses resolve the labor shortage they are facing. The shifts in immigration policy are inconsistent with this goal, and restrictive immigration policies are continuing to eliminate U.S. employment opportunities for foreign workers.