While the 2nd and revised Executive Order (EO) banning visitors from specific countries is suspended and subject to review by the 4th Circuit Court of Appeals in May, individuals from the targeted countries have been greatly concerned about their ability to travel freely to and from the US.
Furthermore, the temporary removal of premium processing of H-1B visas has shut down the ability of persons working legally in the U.S. from obtaining permanent status. In the past, with premium processing, they could expedite the transition process and be able to travel more quickly and freely. Without it, newly arrived H-1Bs are “stuck” in the US until their status is finalized.
There is also talk of reducing the H-1B cap altogether, which potentially reduces foreign born workforce in the US. Why does this matter? Overall, higher scrutiny and an approval process with more qualifiers and restrictions may impact access to H-1Bs in the future. Changes may include controls for employers to take additional steps to fill positions with U.S. workers, a significant minimum salary increase for H-1B holders and removal of the master’s degree exception, phasing out work eligibility for trailing spouses of H-1B holders, and prioritizing H-1Bs for foreign students who have studied in the U.S.
If H-1B employees are suddenly unable to come to or remain in the United States, it will be much harder for companies to find qualified workers for entry-level positions, since large percentages of those have been filled by non-US citizens. This puts extra strain on smaller companies who don’t have the leverage to request large blocks of visas at a time, which has been the practice of some of the larger accounting, consulting and high tech companies. The tech industry is expected to be most impacted due to the significant portion of its talent pool coming from abroad, with India accounting for approximately 70% of all H-1B visa workers.
While the restraining order issued by a judge in Hawaii remains in place and arguments are heard on the Executive Order by the 4th circuit court in May, it is technically “business as usual” for valid visa, work permit holders from the 6 identified countries. In a brief order issued Monday afternoon, the U.S. Court of Appeals for the Fourth Circuit told lawyers on both sides of the case to offer their views, by this Thursday, on whether the case should be heard en banc, (before all 15 active judges). If it is decided to hear the case en banc, it is likely to be prioritized, but, due to the highly controversial and politicized nature of this order, there is no guarantee that prioritizing it will expedite a decision or limit further appeals.
So, what does all this mean for HR and Business Stakeholders responsible for deployment of talent from these countries?
Until the dust settles, which may be many more weeks or months, the following recommendations hold:
• File H-1B extensions petitions as early as possible. Timely filings are always recommended, but now with the elimination of premium processing it’s critical to mitigate possible additional delays.
• Be sure to communicate this change to internal and external recruiters, hiring managers, and other key stakeholders involved in executing the company’s talent management strategy.