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MAY 20, 2020 //     

Examining U.S. Immigration Policy in the Age of COVID-19

By: Barbara Laidlaw and Josiah Adams

The human and economic toll of the COVID-19 pandemic cannot be overstated. Over the past two months, more than 30 million Americans filed for unemployment. Nearly 100,000 Americans have lost their lives, accounting for more than the combined American losses in the Korean, Vietnam, Afghanistan and Iraq Wars. Now, many look to the future and debate the correct next steps – a somewhat politicized process, and no more so than in the field of immigration policy. 

Under President Donald Trump’s administration, immigration has been a particularly hot-button issue. Increases in deportations, border arrests and visa denials have been pillars of the Department of Homeland Security and United States Citizenship and Immigration Services. The concept of protecting American jobs has been the core of the administration’s stance on immigration. The current economic climate brought on by COVID-19 has decimated American jobs and, in turn, led the Trump administration and some members of Congress to target legal immigration as a strategy to reduce competition in the U.S .job market. It is unclear how effective this strategy will be, since we continue to see millions of Americans file for unemployment each week. But support for the strategy grows among lawmakers and in the American public.

A poll conducted by The University of Michigan and The Washington Post in late April found roughly 65% of Americans supported “temporarily blocking nearly all immigration into the United States during the coronavirus outbreak.” This came on the heels of a Trump administration executive order that placed a 60-day delay on issuing green cards to certain applicants. Although this executive order turned out to be relatively limited in its scope, the administration and members of Congress have worked diligently to extend or expand temporary restrictions on immigration.

On May 7, Sens. Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa and Josh Hawley of Missouri sent a letter to Trump urging his administration to expand the April 22 executive order to include the suspensions of new guest worker visas, all nonimmigrant guest worker visas and the EB-5 Immigrant Investor Program. Specifically, the letter states that at minimum expanded suspensions should include the H-2B visa (non-agricultural seasonal workers), H-1B visa (specialty occupation workers, and the Optional Practical Training (OPT) program which extends foreign student visas after graduation. Meanwhile, Sen. Steve Daines of Montana recently announced he would be introduce legislation that would extend the current executive order to 60 days after the COVID-19 outbreak is determined to be over with the goal of giving Americans a chance to find jobs in the aftermath of the crisis.

While any type of legislative action in the House or the Senate would take a significant amount of time, the Trump administration remains poised to issue a second proclamation that would effectively ban immigration per these senators’ recommendations. One day after the four senators issued their letter, The Wall Street Journal reported “the president’s immigration advisers are drawing up plans for a coming executive order, expected this month, that would ban the issuance of some new temporary, work-based visas.”

The report named the same visas included in the letter, indicating the administration may feel emboldened to act due to the support of allies in the Senate and among the public. While the report did not reveal the approach the order would take to ban these types of immigration, the possibilities range from an outright ban to the installation of government-backed incentives for businesses to hire American during and after the coronavirus crisis.

The timeline indicates a sweeping ban on additional forms of immigration is around the corner. On May 13, The New York Times reported the Trump administration was moving forward with a plan to extend its coronavirus border restrictions indefinitely – a stark shift from the prior policy that was meant to be an emergency measure during the height of the crisis. Under the new indefinite program, which would be reviewed every 30 days, the policy orders the border closed to immigrants until the director of the CDC says explicitly there is no longer a COVID-19 threat to the American public. Two days later, NBC News reported the Department of Homeland security circulated recommendations for additional restrictions on legal immigration during the pandemic.  

The upshot of this feverish immigration activity – businesses that rely on workers in the United States on temporary work visas or foreign students in the process of extending their visas may need to reevaluate hiring practices because many of these bans could last for more than a year. Of course, this is the objective of many of these policies. But perhaps an unintended consequence is the initial shock to the system could be too great for certain businesses to overcome. This would result in a “lose-lose” wherein these businesses shut their doors permanently and no one, not even an American worker, has an opportunity to seek employment there.

Another consequence of this style of unilateral action is large businesses that rely heavily on visas, like the H-1B visa for tech support positions at Amazon, Google and Microsoft, may view the cost of switching to a more American-centric workforce as too high and simply outsource entire divisions currently in play in the United States. In this case, we are presented with another “lose-lose.”

It’s not only the tech or educational industries that stand to lose if a sweeping and indefinite ban on legal immigration is instituted. The H-2B visa, which is dedicated to seasonal, non-agricultural workers, is critical to America’s hospitality and recreation industries. Some 40% of H-2B visa holders work in landscaping or groundskeeping . Amusement and recreation also rely heavily on the visa. Hospitality workers, like hotel staff, food processors and restaurant workers, are all significant contributors to the H-2B visa as well. Considering these are some of the industries hit hardest by COVID-19 and the summer months are upon us, further disruptions to these industries’ workforces does not appear to be in their best interest.    

Perhaps a 12- to 18-month moratorium on nearly all forms of legal immigration will succeed and force businesses that would otherwise rely on these visas to shift their hiring practices to include some of the more than 30 million Americans who have lost their jobs over the past two months. However, given the economic fallout the United States and the world currently experience and will continue to experience, this result is unlikely.

Immigration is a necessary piece of the U.S. economy. It is a complex network that has strengths and weaknesses, like most of American policy. By making broad, lasting slashes to immigration policy, we risk cutting out the good with the bad and being left with a vacancy that may not be filled in the manner some lawmakers or administration officials suggest. As the COVID-19 crisis continues, we should all be wary of any political action that seeks to capitalize on it.  

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Barbara Laidlaw brings 25 years of experience developing and running programs that help companies prepare, protect, and defend their brand reputation through global and national events, recalls, litigation, data breaches, regulatory issues and labor disputes.

Josiah Adams works on Allison + Partners’ global risk + issues management team and provides federal, state and local policy insights. 

 

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