The current extension states that “while the November overall unemployment rate in the United States of 6.7 percent reflects a marked decline from its April high, there were still 9,834,000 fewer seasonally adjusted nonfarm jobs in November than in February of 2020.” This reasoning is factually and logically untenable.
On 31 December 2020, the outgoing president extended the ban against legal entry into the USA, apparently exalting the will of a lame duck president over national interest, the Rule of Law, and the courts. How does that affect the stakeholders — visa applicants, US businesses, hospitals, universities, and other participants in the grand American experiment with democracy? For now, our legal situation remains unchanged.
Initially, Mr. Trump had imposed an emergency, thereby suspending many laws and assuming a great deal more power over the nation than is normally available. In April and June of 2020, he put in place bans against legal immigration as well as nonimmigrant visas.
Citing interest of American workers as the primary rationale, the bans applied to many visas, including the H-1B and L-1. Most egregiously, the bans also applied to the families of the visa holders who were stranded outside the USA.
Mr. Trump had justified the earlier bans stating that “under the extraordinary economic contraction from the Covid-19 outbreak, certain nonimmigrant visa programs pose an unusual threat to the employment of American workers.”
The current extension states that “while the November overall unemployment rate in the United States of 6.7 percent reflects a marked decline from its April high, there were still 9,834,000 fewer seasonally adjusted nonfarm jobs in November than in February of 2020.”
This reasoning is factually and logically untenable.
The U.S. unemployment rate in November was 6.7%, down from 14.7% in April when the first ban was announced. In computer occupations, there was a net 0.8% decrease between January 2020 and November 2020.
The language of the extension demonstrates non sequiturs that Trump is known for:
“Moreover, actions such as States’ continued imposition of restrictions on businesses still affect the number of workers that can be hired as compared with February of 2020.” Other than airing Trump’s grievance against COVID-19 precautions, how does that justify banning professional workers?
(The extended ban is motivated by Trump’s desire to look good and have the incoming President look bad)
Reportedly, there was debate within the White House whether the bans should be extended. It is illogical for a lame duck president to continue policies that would last beyond his tenure, which ends on January 20, 2021.
One must inevitably conclude that the extensions are motivated by a Mr. Trump’s desire to look good for the voters, and make Mr. Biden look bad for having to make a choice to revert the bans soon after assuming the leadership of the nation. That could be construed by the uninformed section of the populace as an action against the interest of the US workers. Additionally, it is also obvious that Trump wants to punish technology companies, who largely are no fans of the Trump administration.
Reportedly, President-elect Joe Biden’s team has declined comments on how he would handle the bans.
(Courts have already ruled that the bans are illegal with respect to those who sue)
US courts have been baffled by the irrationality of the visa bans and the administration’s other actions against legal immigration. The president had imposed an emergency, but could not thus be allowed to affect domestic policy under the guise of managing foreign relations. The president has tinkered with the careful policy balance struck by Congress between the interest of the US workforce and the US businesses. These actions have been taken without due deliberation or consultation with the stakeholders. There is no justification or logical connection between the claimed harm and the applied correction.
In October 2020, the US Chamber of Commerce with several co-plaintiffs, won a preliminary injunction on the visa ban in court. The injunction allowed and continues to allow the plaintiffs to resume bringing over their foreign employees. The court noted that the president had clubbed together all unemployment without distinguishing professional from non-professional jobs or the nature of the jobs. “The statistics regarding pandemic-related unemployment actually indicate that unemployment is concentrated in service occupations and that a large number of job vacancies remain in the area most affected by the ban, computer operations which require high-skilled workers.”
The data obviously belies the purported justification.
(The stakeholders are left to worry about the status quo, but Mr. Biden will have to reverse these bans, or the courts will)
The visa bans have caused considerable hardship to US businesses, their foreign workers and the families of the workers. With the extension of the bans, the status quo remains.
Trump has taken ill considered actions with an abruptness that created chaos. After the initial bans, the US State Department had to scurry to formulate exceptions to the visa bans. This type of random decision-making has been typical of the Trump administration. But, we can reasonably expect that those exceptions will continue forward along with the ban extensions.
The media reported comments from the US Chamber of Commerce, universities and various technology business stakeholders when the bans were put in place. A tech business association aptly lamented that these bans were “making it more difficult for bright minds to work in the U.S…[which] only benefits our competitors abroad who will attract their talents to build and develop cutting-edge, job-creating goods and services.” Much of that has already come to pass and can now only be ameliorated by a quick reversal of these unnecessary, ineffective and illogical bans.
The author is Managing Attorney at Immigration.Com