“Trump Immigration” has been a brand of immigration policy focused on promoting a constant feeling of confusion and unpredictability for U.S. companies and immigrants alike. This has only accelerated as we move towards the November, 2020 presidential election. So what can we expect between now and November? Most likely at least one more series of Executive Orders aimed at attempting to restrict lawful immigration, perhaps an attempt at some merit-based measures, changes to H1B adjudications, and perhaps more.

“Buy American Hire American” Was Just the Start

Since early on in President Trump’s time in the White House there has been talk of many coming changes to the U.S. immigration system. One of the first actions was the release of the Buy American Hire American Executive Order, which set the tone for the challenging adjudication climate which followed, in particular impacting H1B and L1 visa applications and others, a trend which still continues today. …

With the unfortunate reality of COVID-19 and the layoffs occurring as a result of the economic downturn let’s take a look at considerations companies need to keep in mind when terminating an employee who holds H-1B visa status.

Please note that the information provided in this article is not intended to be taken as legal advice, and is only informational in nature to make readers aware of possible issues to discuss with counsel. No attorney-client relationship is established. www.immipartner.com

So let’s walk through the steps to help reduce the risk of an improper termination which could lead to unexpected surprises down the road for a company including back wage liability. …

It is critically important for HR professionals and company decision-makers to realize that layoffs in particular role types will have negative impacts on the Green Card processes for international employees in the same or related roles. Let’s consider this more closely.

Please note that this post is not legal advise but is instead intending to make readers aware of certain issues to then work through with legal counsel. www.immipartner.com

Over the last several weeks, due to Covid-19 I have received this email in various forms:

“Hi, Hendrik, we are considering layoffs in one of our engineering teams, as well as one of our sales units. Am I correct in understanding that layoffs mean we cannot pursue any green card application for any of our employees?” …

One of the most common questions I get as an immigration lawyer in Silicon Valley, having helped many immigrant entrepreneurs over the last decade, is whether visa holders can pursue a business idea that was not the focus of their current underlying visa status.

Now you might expect the U.S. immigration rules to provide a definitive answer to this seemingly simple question of what constitutes employment and therefore requires specific employment authorization, but you would be sorely mistaken. It would certainly help to have such clarity, both as a means to help visa holders stay within the law but also to help promote economic development and innovation. …

Whichever side of the immigration debate you fall on, it is an actual fact that since early 2017 obtaining work authorization in the United States as a highly skilled professional has become much more difficult. Among many statistics bearing this out, including the U.S. Citizenship and Immigration Services’ H-1B Employer Data Hub, there have been massive increases in case processing delays and denied cases. It used to be that the biggest concern for international skilled workers was getting selected in the H-1B lottery each year, based on the limited number of 85,000 new H-1B visas made available each year. …

Having helped hundreds of foreign-born entrepreneurs and executives through the U.S. immigration process as an immigration lawyer for over a decade, I have seen a few stumbling blocks repeat themselves. If you are aware of these traps now, you can avoid a host of future headaches.

Underestimating The Time Commitment

Particularly in the current immigration climate, with record numbers of government challenges and processing delays, entrepreneurs often underestimate the amount of time and energy required to obtain the proper work authorization in the United States. It is understandable that as a founder you are placing all of your time into making sure that there is a viable market for your business, but it is critical to remember that without proper immigration status, you will be unable to pursue any endeavors no matter how promising your company is and no matter how much money investors might send your way. …

With the majority of STEM graduates in the U.S. being international students it is absolutely critical for early stage tech companies, seeking to scale by attracting top talent, to develop and leverage their immigration program.

(Originally Published in Forbes on March 25, 2019) — Over the last decade as a corporate immigration attorney in Silicon Valley, advising founders and venture-backed companies, I’ve seen that the battle for the world’s top STEM talent (irrespective of national origin) has been relentless. …

The Trump administration has decided to follow through on threats to rescind working authorization for the spouses of the most popular professional worker visa in the U.S., the H-1B.

Since 2015 spouses of an H-1B holding an H-4 visa have, in certain situations, been able to obtain working authorization. This move to officially start the rescission process of this rule certainly calls into question Trump’s sincerity expressed during the State of the Union address where he said: “I want people to come into our country in the largest numbers ever, but they have to come in legally.”

Rescinding H-4 work authorization will not only impact technology companies who are directly employing H-4 spouses but it will also have a potentially serious impact on the H-1B visa holders that they employ. Can you imagine moving from a two income household to one, especially in high cost tech hubs like the Bay Area? At what point does it not become worth the continuous anxiety and unpredictability of being such a visa holder in the U.S.? This is an incredibly negative development although not surprising under the current climate. …