What do Trump and Stephen Miller have against Smart Kids?

Laura Rosmarin Uncategorized Leave a Comment

It’s hard not to read between the lines.  The latest Presidential Proclamation to come out of this xenophobic administration is the “Proclamation Suspending Entry of Aliens Who Present a Risk to the US Labor Market Following the Coronavirus Outbreak.”  Despite Trump’s inability to recognize the very existence of a pandemic or the economic crisis this country faces, when it comes to Stephen Miller’s nativist agenda, any opportunity to justify an anti-immigration order is fair game.  Thus, he has used Covid-19 to justify yet another assault on the H-1B and many other business generating visa programs.

However, if we read between the lines of this order, what is clear is its target – all of those H-1B lottery-winning students.  There are only 85,000 H-1B visas granted per fiscal year.  Therefore, in March 2020, USCIS, for the first time ever, organized an online registration system and charged each registrant $10 for an H-1B lottery ticket.   Hundreds of thousands of companies registered their prospective employees.  Many of these hopeful H-1B entries were foreign graduating students.  These students come from all over the world.  They are bright and full of passion for the American dream.  Their specialties range from engineering to science to medicine to law.  These are educated young professionals.  Many have studied at U.S. universities and have now been offered future positions with companies all over the U.S.

The lucky H-1B lottery winners have two options once they are selected.  If they are overseas or need to return home, their company will file for them and once approved, they can apply for their visa at a U.S. consulate abroad.  They then return to begin working on Oct. 1, 2020, the first day of the fiscal year.  However, if the foreign national is legally in the U.S., they can opt to change their status, effective Oct. 1, 2020.  These prospective employees do not need to leave and pick up a visa to begin working in the U.S.  Their status automatically changes from student to H-1B on Oct. 1.

Now the rub, as a result of Trump’s new proclamation, all of those hopeful H-1B winners who are abroad, must now stay abroad.  They cannot pick up their H-1B visas.  They cannot begin work on Oct. 1, 2020.  All the money their future U.S. employers have spent on legal fees and filing fees to USCIS (this is important) are for naught.  They are now stuck abroad until 2021.  This will cost U.S. companies hundreds of  thousands.  However, the government loses nothing.  USCIS will keep all of those filing fees, including those premium processing fees, $1,440 per petition.  The gall of this administration is staggering.

But what amazes this attorney is the insult USCIS now adds to injury.  There is a new Request for Evidence (RFE) arriving in the mail for U.S. companies who have petitioned for foreign national students already in the U.S.  That new RFE questions one thing, status.  The reason is clear.  For those foreign nationals in the U.S., this Proclamation cannot touch.  Their status changes to H-1B on Oct. 1, 2020.  They do not need a visa.  They are safe.  Unless, USCIS can prove they fell out of status.  If they were not in legal status at the time their petition was filed, they too will have to travel abroad to pick up a visa.  They too will have to wait until 2021.  They too will not be able to begin work on Oct. 1, 2020.

How can Stephen Miller and his minions prove a student fell out of status?  They will need to prove that either the student was, at one point in time, not enrolled as a full-time student, or, that the student violated their status through unauthorized employment at some point in time.  At some point in time is significant, because, USCIS is now asking for academic and employment records dating back to their initial entry as a student.  Many of these students have multiple U.S. degrees and have studied in the U.S. for many years.  They now must go back and retrieve evidence of jobs, studies, attendance, even “receipts for books, parking passes, and school supplies” .. (that’s my favorite).   Trump knows nothing about immigration or the economy, but he does know about college students and their ability to save receipts.  Wow, there is no limit to how far this government will reach to kick out all those smart kids.

The greatest hypocrisy of all is the actual stated purpose of the proclamation.  This proclamation claims to improve the labor market affected by Covid-19.  However, if we look at the actual numbers, most of these students have come here to fill STEM positions.  STEM positions have the lowest unemployment rate in the U.S. because this country has the highest demand for these professionals.  And, this country has a very difficult time finding them in the U.S.  These STEM professionals are exactly what the U.S. needs to fuel our economy and eradicate this pandemic.  One thing is clear.  We need these smart kids.

About the Author

Laura Rosmarin

Senior Counsel

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