They Came for the 'Illegals' First, Now They're Going After Immigrants Who Played by the Rules

The Trump administration might be setting the stage to eject foreign techies who've played by every immigration rule.

Anti-amnesty firebrands, like conservative radio talk show host Rush Limbaugh, have long insisted that they weren't anti-immigration, they were just anti-illegal immigration. But even as they were saying this, they were also accusing legal immigrants—people who came to American "the right way"—of all kinds of sins, paving the way for President Donald Trump's all-out assault on literally every category of immigration.

Now the Trump administration is reaching a point where it wants to kick out immigrants for no reason except that they are immigrants.

Most immigration watchers thought President Trump's new executive order extending his 60-day April immigration pause until the end of 2020 was meant to stop new immigrants from coming into the United States. As I pointed out, the order was halting new green cards for anyone other than the children and spouses of American citizens. It was also imposing a moratorium on new temporary work visas, including H-1Bs for foreign techies, H-2Bs for low-skilled non-agricultural work, J visas for summer jobs, and L visas for intra-company transfers. Bringing in more workers from the outside, the proclamation's zero-sum logic declared, "present[s] a significant threat to the employment opportunities for Americans," which the country can't allegedly afford at a time of high pandemic-induced unemployment.

But now the National Foundation for American Policy's Stuart Anderson has found that buried in the proclamation is a potential deportation plan for hundreds of thousands of high-skilled foreign workers who've been legally living inside America, in some cases for decades. They have high-paying jobs for skills that are in short supply in America, they pay far more taxes than they'll ever consume in welfare, and they are generally upstanding folks.

Foreign techies have to go through an exceedingly arduous, expensive, and long process to obtain green cards. The wait time for green cards is running over seven decades for many of the 350,000 Indian professionals on H-1Bs—and their 357,000 dependents—in the country currently. That's because Congress capped employment-based green cards at a meager 140,000 per year.* And then, just for good measure, it gave every country the same quota for green cards. This means that countries like India, China, and the Philippines, which send America many tech workers, doctors, nurses, and other high-skilled laborers, have access to the same number of green cards every year as, say, Kazakhstan, which barely sends any. The upshot is that a massive backlog has developed for the former countries. But of course, the Trump administration has shown zero interest in a simple fix like eliminating the per-country limit and rolling over the unused green cards from previous years.

So what does the process of acquiring employment-based green cards for foreign techies entail?

The first step involves acquiring a visa to legally work in the country. The only option for the vast majority is an H-1B visa, including foreign international students graduating from American universities. Getting this visa is itself an exceedingly fraught proposition given that only 85,000 are handed out via a lottery every year—less than half the demand. In order to obtain these visas, the employers of these workers have to prove to the Department of Labor (DOL) that they will be working in some pre-approved specialty occupation, will at least get prevailing wages, and that the company isn't involved in an ongoing labor dispute. H-1Bs are not transferable, which means that H-1B holders need another company to petition on their behalf if they wish to change jobs.

If a company wants to hire an H-1B holder permanently, it has to apply for his or her green card. This means it has to return to the DOL to obtain a "labor certification." What does this involve? Among other things, it requires proving that there are no qualified Americans to perform the job by advertising in DOL-approved channels, reviewing resumes of all applicants, and then explaining to DOL bureaucrats (if asked to) why this particular candidate is the only one who can perform said job.

If the DOL issues labor certification, then the employer can file an I-140 form with the U.S. Citizenship and Immigration Service which, if accepted, puts the employee in a line to be eventually approved for a green card. This is the step that is now taking decades for nationals from India, and years and years for many others.

But Anderson maintains that Trump's new proclamation includes ominous language that potentially opens the door to subjecting the I-140 holder to one or more additional labor certifications while they are waiting to be approved for their green cards. At the same time, the administration might make the labor certification process itself so onerous as to ensure that few could pass it.

Should the administration proceed with its scheme, hundreds of thousands of high-skilled professionals who've played by every rule and waited patiently for years for their green cards, raising families and building lives in America, could find themselves ejected from the country. "If a foreign government wanted to come up with a plan to harm America's technological leadership in the world, this would be the plan," Anderson says.

To be sure, there are significant statutory hurdles that might prevent the administration from successfully requiring repeat certifications, says Anderson. However, simply attempting to do so will sow fear and panic among foreign professionals and prompt at least those who are in the relatively early stage of the process to self-deport rather than take any risks with their lives and careers.

Nor is this the first attack on foreign professionals by this administration. The denial of new H-1B petitions has increased considerably during Trump's term and renewal of existing petitions has become much harder. Still, if this new development comes to pass, it will take things to a whole new level. It'll basically make the ability of these professionals to stay in the United States nearly as precarious as that of undocumented immigrants.

The rap against the latter, of course, was that they were not playing by the rules; they were violating the rule of law. But now the administration is moving the goalposts for those immigrants who have played by the rules. The rule of law, properly understood, is meant to prevent the government from arbitrarily passing irrational and unfair rules whose purpose is not to help ordinary people coordinate their plans but simply harass or control them. But restrictionists have turned this argument on its head to absolve the government of any responsible rulemaking while throwing the book at the undocumented for minor, victimless transgressions.

But once one set of peaceful foreigners who are here to work came to be regarded as liabilities rather than assets, all immigrants—regardless of whether they are playing by the rules or not—became fair game. Undocumented immigrants were just the lowest hanging fruit. Over the years, restrictionists have found ways to smear every category of immigrants. Family-based immigration got pilloried as chain migration; refugees got branded as national security threats; Latin American asylum seekers got lambasted as "invaders." And now foreign techies, a once-sacrosanct class of immigrants that even conservatives considered highly desirable, are being branded as economic threats.

They came for the illegals first—but of course they didn't stop there.

*This sentence has been revised for accuracy