Foreign-born workers make up over 16 percent of the US labor force, totaling 26.3 million people, including both legally permitted and undocumented immigrants. During his campaign, president-elect Donald Trump vowed to crack down sharply on illegal immigration, with pledges to build a wall along the US-Mexico border and to establish a nationwide deportation force to remove an estimated 11 million undocumented immigrants from the US.
One way Trump’s immigration policy may affect employers is if they employ beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program, which President Barack Obama established in 2012 and which is among the many executive actions of the Obama administration Trump has said he would undo. These employees, SHRM’s Roy Maurer explains, will lose their authorization to work if the program is canceled:
DACA granted reprieve from deportation and provided work authorization to more than 740,000 young people whose families brought them to the U.S. as children. Trump also promised to end a 2014 expansion of that program to many parents of U.S. citizens and permanent residents that was held up in court and never implemented.
“Employers should be prepared for their employees to lose their work permits, if they were granted under the DACA program,” Stock said. Employers are not normally required to re-verify employment eligibility during the validity period of a worker’s employment authorization but would be required to terminate any DACA workers once they had “actual or constructive knowledge” that the employee had lost his or her work permission, he explained.
While the undocumented population is the main target of Trump’s immigration proposals, he has also criticized US businesses for outsourcing work abroad and using the H-1B skilled worker visa program to fill roles in the US with immigrants rather than US citizens. This is the main reason why Trump’s victory in the presidential race makes some Silicon Valley leaders nervous. The high-tech sector has relied heavily on access to a global market for tech talent, and more restrictive immigration policies could make it harder for those companies (but not only them) to acquire the highly skilled employees they need. As The Verge‘s Nick Statt explains, immigrants are also a key part of Silicon Valley’s self-identity:
The CEO of Google, Sundar Pichai, is an immigrant. As are Google co-founder Sergey Brin and Microsoft chief Satya Nadella. The entire Silicon Valley philosophy rests on the idea of rewarding individuals for hard work, talent, and ingenuity — regardless of race, class, or country of origin. Trump’s vague immigration policy proposals threaten this worldview. In a very material way, they also threaten the workforces of both the juggernauts and startups of the tech industry that use the H-1B and other visa programs to expand talent searches around the globe.
According to the National Foundation for American Policy, more than half of all US technology startups are founded by immigrants. So without an easy path toward citizenship, or in the face of a clamping down on foreign work visas, Silicon Valley faces to lose more than just its lobbying goals in Washington. It could begin to see its influence in all sectors of modern industry — from entertainment to transportation to finance — wane as foreign workers and startup founders are denied entry and begin establishing technology centers outside the US.
One reason why the H-1B program is controversial is that demand for these visas is significant: Data released by US Citizenship and Immigration Services in March showed that employers filed around 236,000 petitions for visas for the 2017 fiscal year, 3,000 more than in the previous year. That’s many more than the 65,000 H-1B visas Congress allows the government to issue each year, plus 20,000 exemptions for beneficiaries who earned an advanced degree in the US. Overall, the Information Technology and Innovation Foundation (ITIF) estimates that there are about 400,000 workers currently in the US on H-1B visas.
At the Wall Street Journal, Newley Purnell asks what will likely happen to H-1Bs after Trump takes office. While opponents of the program expect no trouble selling the president-elect on curbing the use of these visas, Trump’s own stance on the issue has shifted throughout the campaign:
Early in the year policy statements on his campaign website said the numbers of such visas should not be increased. In a March debate, however, he said he supported highly skilled immigration. But after the debate, he issued a statement vowing to “end forever the use of the H-1B as a cheap labor program.”
H-1B visas are not mentioned on the immigration policy page of Mr. Trump’s presidential-campaign website. His vision is to “Establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first,” the website says. Similarly, Mr. Trump’s separate presidential-transition website’s immigration page does not address H-1B visas, focusing on curbing illegal immigration and reforming legal immigration.
ITIF president Rob Atkinson, speaking with Tech Republic‘s Hope Reese, notes that Alabama Senator and Trump stalwart Jeff Sessions—now the president-elect’s choice to be Attorney General—has been a longtime opponent of the H-1B program as well:
Atkinson doesn’t think Trump could pass a bill against the visas, since so many Republicans still support them. He also said any new policies probably wouldn’t affect any high-skilled workers currently in the US on H-1B visas. Still, Atkinson believes the new administration would likely “work to make it harder for companies to apply for them” by imposing stricter requirements from employers to prove they can’t hire an American for the job, for instance.
As one example of the potential impact, last week Quartz writer Madhura Karnik investigated what a crackdown on H-1Bs would mean for India’s IT talent-export industry:
Trump’s policies would deal a blow to US companies that depend on foreign talent. They would also directly impact two of India’s largest talent-export groups: students and workers in the IT industry. India’s IT companies, which generate more than 75% of their revenue from the US, often by sending workers there, would also struggle with such a clampdown on the prized work visas. But reforms may not be immediate, say experts.
“I don’t think Trump will make changes to the H-1B and L1 visa programs right away,” said Poorvi Chothani, managing partner at LawQuest, a global immigration law firm headquartered in Mumbai. “In the future, however, Trump could tweak the H-1B and L1 visa programs in a way that may make it harder for companies including Indian IT firms to engage Indian employees. This would affect the profitability of Indian IT companies,” Chothani, who works with several Indian IT firms on immigration-related issues, added.
A more hostile attitude on the part of the White House toward immigration could also discourage foreign talent from seeking jobs in the US, even if there is little or no change in policy. We see this effect playing out in the UK: While most European workers will likely be allowed to remain there after it exits the EU, the Brexit referendum has made these workers feel less welcome in Britain, and some are already looking to leave, regardless of what the future holds for immigration policy. In a similar vein, Michael C. Jacobson at SHRM suggested in his post-election thoughts last week that one of the long-term implications of Trump’s election could be a less globalized workforce for the US, with all that would entail:
Assuming the “big, beautiful wall” gets built and immigration enforcement achieves the goals Trump has in mind, finding work as an immigrant in the U.S. might be more challenging, burdening immigrants and their families, but also the businesses that rely on immigrant labor to run efficiently. The countries that send us immigrants might retaliate as a result.
The upshot of all of this is a potential scaling back on the “globalization” of the American workforce. Companies may repatriate some overseas workers to avoid penalties and fees, but might also repatriate some of their off-shore money at corporate-friendly tax rates. It’s hard to predict where we go from there, but it’s sure to create a very different vision of the future than that which we held before the election.
So how should employers respond to the uncertainty around immigrant talent? As our own Brian Kropp told the Financial Times last week, the best way to prepare is to go ahead and come up with some “plan Bs.” It’s entirely possible that US organizations will have to cope with a more restrictive environment when it comes to attracting, hiring, and retaining foreign talent, so be prepared for that possibility. In a time of great uncertainty about the future of the regulatory environment, organizations need to plan for every scenario, rather than “wait and see” how laws and rules ultimately change.