Operating in a Time of Uncertainty: U.S. Immigration Reform and Its Potential Impact on Global Talent Mobility

As demonstrated during the week of January 23, 2017, immigration reform is a key focus area of the new administration.  Efforts are likely to focus on curtailing illegal immigration, however there are potential implications for a variety of visa and immigration situations, including legal, skilled workers who are part of the H-1B visa program. The H-1B visa is a non-immigrant visa that allows U.S. companies to employee graduate level workers in specialty occupations that require theoretical or technical expertise in specialized fields such as IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.  The focus on H-1B visa holders is to enforce the intent of the visa, which is to provide the opportunity to hire individual’s with specialized skills who hold, at a minimum, a Bachelor’s degree or the equivalent. H-1B visa issuance is not intended to serve as a “cheap labor program” alternative to the hiring of local, higher-cost talent.  

In the New York Law Journal, Julie Muniz writes, “provisions that are deemed to negatively impact U.S. worker wages or job prospects will be at risk of rescission… [The] H-1B visa program has been widely criticized for suppressing U.S. wages and taking jobs away from U.S. workers…Thus, it is likely that the Trump administration will introduce a labor market test or non-displacement attestation, increase salary requirements and direct investigations on staff augmentation arrangements.”¹ A potential restriction on the number of H-1B visas and the accompanying mandate that companies look to hire U.S. citizens before turning to H-1B employees could serve to shrink the pool of skilled job seekers companies are able to choose from and increase competition for those skilled candidates.  The opportunity to import talent to fill U.S. resource gaps may be shrinking, and companies will need to find viable alternatives to continue to meet their talent needs.  Additionally, we could begin to see “retaliation restrictions” on U.S. talent living and working abroad in some impacted countries.

Beyond stricter requirements for H-1B visas, the “extreme vetting” proposed by the new administration may lead to increased costs and delays in visa and immigration processes for international talent and may cause some nationalities to lose access to the U.S. visa programs indefinitely.  Certain nationalities have already experienced U.S. entry restrictions.  The Executive Order signed by the President on Friday, January 27, 2017 suspends admission into the U.S. for 90 days for people from seven locations:  Iraq, Syria, Sudan, Libya, Somalia and Yemen.  The order extends to citizens of those seven locations that hold U.S. visas or U.S. green cards.  Subsequent press reports and official Department of Human Services statements issued on Sunday, January 29, 2017 confirm that lawful permanent residents from the seven identified countries are being permitted to enter the U.S., however it is possible that these individuals will face additional questioning prior to being granted entry.  On Friday, February 3, 2017, a Washington judge blocked President Trump’s January 27^th order, and a U.S. appeals court denied a request from the U.S. Department of Justice to immediately restore the immigration order on Saturday, February 4, 2017.

While the latest rulings provide an opportunity for travelers from the named countries to enter the U.S., it is clear that the future of immigration reform remains uncertain.  Additional countries may be added to the “ban” list following a review by the Secretary of Homeland Security of the current visa screening process.  If a country is identified as not providing adequate information to the U.S. and they fail to comply with requests for additional information, they may be added to the list.

Other nations could capitalize on this uncertainty and attract talent away from the U.S. labor force, creating increased scarcity to fill skilled positions. These changes are likely to disproportionately affect technology companies, which have historically relied heavily on attracting the best international talent. CEB, a global best practice insight and technology company, advises that “Companies that rely on H1-B talent may need to find an alternative source of skilled employees or consider expanding operations abroad to meet workforce objectives. Companies that rely on foreign nationals in key roles will also need to monitor their teams for signs of disengagement and the risk of them quitting, and identify competitor hiring and relocation trends to stay abreast of important changes in the market.”²

While some degree of change to immigration policy seems to be a foregone conclusion, these changes will take time to solidify, creating uncertainty for some time. Regulatory provisions such as H-4 and STEM student work authorizations will likely take six months or more to change in order to be in compliance with the Administrative Procedures Act. Statutory provisions such as H-1B wage reforms and labor market tests will be the most difficult to change and will take much longer. To prepare, Muniz advises that “employers should perform a census of their foreign worker population in order to determine which employees may be affected by a change in law or policy and to ensure compliance with any new requirements.”³

In an era of uncertainty related to potential changes in the U.S. as well as in Europe related to Brexit, companies should assess where they need skilled workers, as it may become more difficult to move talent across international borders. We are likely to see a rise in alternate work arrangements (e.g., telecommuting) where companies can manage workloads from less expensive markets. Companies must engage in contingency planning so they do not find themselves in a situation where they are unable to execute on strategic initiatives because they do not have access to the necessary talent. As current events continue to unfold, creating readiness plans that demonstrate the employer’s responsibility of duty of care are essential. A readiness plan may include actions such as:

• Inventory of all employees who are or may be impacted by current legislation.  This inventory (currently) should include citizens of the identified seven countries who are U.S. green card holders (permanent residents) or U.S. visa holders who:
  • Are or may be required to travel outside of the U.S. for personal or business reasons
  • Are on assignment outside of the U.S.
• Review of all immediate and extended business-related travel bookings for individuals who hold passports and/or citizenship in one of the identified locations, as well as any individuals traveling to or from one of the seven identified locations
• Detailed discussions with an immigration services provider regarding immigration order updates (real time) and contingency plans to support impacted individuals
• Detailed discussions with a destination services provider to define/confirm contingency plans for impacted individuals
• Review of “duty of care” policies and procedures

As immigration reform continues to develop and the situation continues to change, SIRVA’s global footprint, vendor relationships and existing processes can provide a support network to companies and their relocating employees to define and implement an action plan that will promptly address employee concerns and needs related to household goods, temporary accommodation and location departure services. 

[1] Muniz, Julie. “Business Immigration Under Trump: Upcoming Changes and How to Prepare.” New York Law Journal. 29 December 2016.

[2] CEB Sales Leadership Council. “Four Ways Trump’s Election Could Affect US HR Departments.” Web. 12 January 2017.
[3] Muniz, Julie. “Business Immigration Under Trump: Upcoming Changes and How to Prepare.” New York Law Journal. 29 December 2016.app