Huge Crackdown on H-1B visas!!! Not really.

For a moment, it looked like the H-1B filing deadline was going to pass without much change from the previous administration. Other than a shot across the bow the Trump administration did little to indicate any real changes to the program. Yesterday’s announcements didn’t really change that in any substantive way, although they did add a new sense of concern over whether – and how – the administration would go after companies it perceives are putting US workers in a “disfavored status.” DoNotEnter

After all, the tests for obtaining an H-1B visa don’t really measure, or even attempt to measure, whether an available US worker was overlooked. Rather, the goal is to ensure that there is no wage incentive to hire foreign workers over similarly qualified US workers, the idea being that market forces would do the rest. In some sense, that’s a very Republican approach to regulation, and for some time it worked pretty well.

Since the late nineties, however, the H-1B visa program has become much more controversial. For many it’s seen as a vehicle to bring in cheaper workers with lesser qualifications to unfairly complete for US jobs. The tech industry, on the other hand, insists that these visas are critical for the US IT industry.

There’s no doubt that there is abuse in the H-1B program (and, as a result, the L-1B visa program as well), and that the program could readily be improved. There’s also little doubt that the pool of ready, willing, and qualified US workers looking to step into these positions is limited. Indeed, many of my clients, coming in from overseas to start doing business in the United States, have been extremely frustrated to find that the pool of qualified workers in their area is made up largely of other non-US workers for whom expensive and time-consuming visa applications are required. The program would definitely benefit from a balanced review by Congress and some smart modifications, as have been proposed by any number of practitioners and law professors. A good start might be limiting the use of H-1B visas and L-1B visas by so-called body shops, since those employers have the market power to push down H-1B wages significantly over time.

Unfortunately, that’s not what’s happening, and the administration’s ad hoc method of changing immigration law is sowing uncertainty while giving companies neither the time nor the tools to plan for change. Had this announcement been made in January, companies whose use of the H-1B visa was perhaps unnecessary or improper would have at least had the chance to test the US market and determine whether the non-US worker was actually needed. As with the travel ban, however, this most recent announcement comes after all of the applications have been prepared, checks have been cut and, frankly, most everything was already in the mail. As with the travel ban, that’s not fair to the companies or the people who are planning on those visas for their livelihood.

EU votes to impose restrictions on US travel

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While the big news in US travel has been President Donald Trump’s travel ban, there are indications that travel to the US has become more difficult for travelers from all around the world, including valuable trading partners like Western Europe and Asia. While much of that has been anecdotal, reports of overzealous border controls and immigration raids would appear to be impacting travel to the US. The Economist reported that searches for flights to the US dropped 17% since Trump became president, with business travel dropping 3.4% in the week following the order. Based on our office’s experience, travel to the US, even for business travelers from Europe, has become a more unpredictable experience than before.

Now it looks like the EU is preparing to make American travelers to Europe share in the pain. According to a report in the Independent, the EU has passed a non-binding resolution recommending that US citizens no longer be permitted to travel within the EU visa-free. If implemented, US travelers could be forced to apply for visas for travel within Europe within a little over one years’ time. The EU has also been considering a registration requirement for US travelers to Europe which would presumably be similar to the US ESTA program. While both changes have been under consideration for some time, the timing certainly suggests that US policies have bolstered support for actions which might otherwise hurt the European travel industry.

Whatever the long term results of this resolution, business travelers from both sides of the Atlantic can reckon with more bureaucracy and less flexibility when planning travel, at least until tensions between the US and EU lessen. Travelers to the US, even from visa waiver countries, should consider applying for a visa before traveling, particularly if they’ve traveled to the Middle East or other areas with connections to terrorism.