To the Relief of H-1B Workers, Biden Lets Trump’s Ban on Foreign Workers Expire

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To the relief of H-1B workers and the companies who hire them, President Joe Biden allowed a Trump era ban on foreign workers to expire March 31, as expected.

The Wall Street Journal, citing three unidentified sources, reported that the White House will not renew the ban that former president Donald Trump issued last June. The former president issued the ban noting unprecedented levels of unemployment during the COVID-19 pandemic and a need to protect American workers.

Earlier in the month, Indian American attorney Cyrus Mehta predicted that Biden would allow the ban to elapse March 31, without himself rescinding it.

“The optics aren’t great. Biden hasn’t taken any actions to rescind it, possibly because of push-back from organized labor and a thrashing from Republicans,” Mehta told India-West March 8.

Newark, California-based immigration attorney Kalpana Peddibhotla told India-West she was disappointed that Biden simply let the ban elapse, rather than formally rescinding it.

“It gives credence to the myth that H-1B workers harm the U.S. labor force: economic data shows just the opposite,” she said. “By allowing the ban to just play out, Biden did not take a stand against this myth.”

Peddibhotla noted, however, that Biden has pushed forth a broad scope immigration agenda and has issued a number of reversals on Trump’s anti-immigrant policies, including the Muslim ban.

Proclamation 10052, titled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” banned foreign workers outside the U.S. from applying for a visa that would allow them and their dependents to travel to the U.S. Visa categories included in the ban were H-1B workers and their spouses; H-2B visas for non-agricultural workers; J visas for student exchange programs; and L visas for intra-company transfers.

Thousands of workers with approved H-1Bs and L1s were nevertheless banned from entering the country to start their jobs last October.

Exceptions were not initially made for health care workers, despite the pandemic, which has claimed the lives of more than 550,000 U.S. residents; the proclamation was later modified to allow some health care workers to enter the U.S.

The ban did not apply to foreign workers already in the U.S.

“American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work,” said Trump on June 22, 2020 as he issued the ban. “Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers. Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.”

“But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers,” said the former president.

But technology jobs count for a tiny fraction of unemployment rates. The U.S. Labor Department reported 112,000 tech jobs were lost last April, when the ban was issued. Tech start-ups laid off 56,000 employees overall.

The National Foundation of American Policy analyzed Bureau of Labor Statistics data to conclude that unemployment for computer occupations was not affected by the COVID pandemic. The unemployment rate for individuals in computer occupations declined from 3 percent in January 2020 to 2.8 percent in April. It fell again to 2.5 percent in May 2020.

Forbes magazine analyzed data from the Bureau of Labor Statistics: In January 2021, in computer and mathematical occupations, the unemployment rate declined to 2.4 percent, compared to a pre-pandemic rate of 3.0 percent in January 2020, according to BLS data. In computer occupations, the unemployment rate declined from 3.0 percent in January 2020 to 2.7 percent in January 2021.

The expiration of the ban means that foreign workers outside the U.S. can now apply for a visa to enter the country. Peddibhotla told India-West there would be backlogs for visa appointments and processing.

The State Department issued a bulletin April 1, citing the expiration of Proclamation 10052. Visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed per existing phased resumption of visa services guidance. Applicants who were refused visas due to the restrictions of the proclamation may reapply by submitting a new application including a new fee, said the agency.

The American Immigration Lawyers Association cheered the elapse of Trump’s ban.

“The nonimmigrant entry ban was based on a false premise that foreign nationals take away jobs and hurt the American economy,” said Jesse Bless, AILA’s director of Federal Litigation, in a press statement. “Unfortunately, the false premise caused true damage to U.S. employers and their employees who were prevented from lawfully entering the country.”

“The Biden Administration needs to take affirmative steps to redress those wrongs quickly and efficiently to help our recovery from the pandemic,” said Bless.

Mehta called for an overhaul of the H-1B program in a March 27 tweet.

“The H-1B lottery – a game of chance – is an inappropriate way for US employers to hire skilled foreign workers. Quotas and lotteries have no place in a modern immigration system. Let talent and skills freely come to the U.S,” he stated.