Wrong Tools to Protect US Jobs

The President has promised repeatedly to protect American jobs from various threats, including competition from non-US workers. He promises to either maintain or bring back permanent, good paying, year round jobs in manufacturing, construction, and the like. In short, the kinds of jobs that the average American worker would want.

Most recently, on June 22, 2020, the President issued a Proclamation that bans the issuance of new, temporary work visas in four categories: H-1B, H-2B, J-1 and L-1 (all family members of the principal also are banned); it remains in place until December 31, 2020. The Proclamation explains how American workers compete against foreign nationals, including those who enter on temporary work visas. It claims that workers using these visa categories pose “an unusual threat to the employment of American workers,” that in the spring, more than 17 million US jobs were lost in industries where “employers are seeking to fill worker positions tied to H-2B” visas, and that “more than 20 million United States workers lost their jobs in key industries where employers are currently requesting H-1B and L workers to fill positions.” The Proclamation also argues that J visa holders compete with US workers in young age groups.

This sounds logical, but the targets of the visa ban (new H-1B, H-2B, J-1 and L visa holders) do not prevent US workers from filling the kinds of jobs that the President repeatedly has promised to protect. Before we determine why they do not interfere with the US labor market, it is important to note what the President did NOT say: he did NOT say that these visa holders will try to take the jobs that US workers had held, because the jobs they lost are not jobs that these visas will permit them to fill. All he said was that jobs were lost in industries or in companies where foreign workers also work or want to work. The following comments explain why the ban does not help US workers.

The H-1B visa category is for professional workers who fill jobs that require the person seeking the job to have a 4-year college degree. These workers do not fill standard manufacturing, construction and similar jobs. Also, the law limits H-1B visas to 65,000 per year (plus 20,000 for individuals with Masters or higher degrees issued by US universities). That’s 1300 per state, or, in a state like North Carolina, 130 workers for each of the state’s 100 counties.

By contrast, H-2B jobs can include manufacturing or construction jobs, but by definition, an H-2B worker cannot fill a year round job, i.e., the kind that the President wants to protect. In addition, every year H-2Bs are limited to 66,000 per year, some of which are used by the President’s Mar-a-Lago resort every year.

J-1 visas allow workers to enter the US for a variety of reasons (to be a trainee, or to work as an au pair or teacher, or be an exchange student), but they, too are very limited in time (typically no more than 12 months); i.e., not permanent jobs.

Finally, L-1s can support either Managers and Executives (L-1A), or workers with unique and highly specialized knowledge that can only be acquired by working for more than a year with a foreign company that has common ownership with the US company where the worker will transfer (L-1B). L-1A Managers and Executives (and H-1Bs) do not displace US workers; instead, the studies are clear that they create jobs for US workers. So even if manufacturing and construction workers competed with L-1A visa holders, which they do not, banning L-1As from the US really is a just a way to make it less likely that US companies will employ US workers. The same is true for L-1B specialized knowledge workers: US workers by definition cannot qualify for most of these jobs because they do not have the necessary, highly unique knowledge of products, processes, equipment of the organization. In short, this Proclamation is another example of using the wrong tools to fight for American workers who have been displaced by both technology and CV-19, and is virtually guaranteed to hurt those US workers.

The force behind the administration’s immigration policies (and the architect and likely the drafter of this Proclamation) is a highly educated and widely read individual, Stephen Miller, who should know what kinds of jobs fit these visas. But with the total disconnect between the goal of saving US jobs, on the one hand, and the targeted temporary visas, on the other, it is apparent that saving US jobs has almost nothing to do with this Proclamation.

However, if the goal of this Proclamation is to shut down the US immigration system completely, even if it means destroying jobs for American workers by hurting the US companies that employ them, then it may achieve that goal if it is not lifted, and soon.

A number of companies have filed suit against this Proclamation and have asked for a preliminary injunction to prevent the ban from being enforced. The Court with this case has not issued a ruling yet.


Gerry Chapman

Chapman Law Firm

August 26, 2020

Chapman Law Firm handles virtually every kind of immigration case. If you need assistance, please give us a call at (336) 334-0034.

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