Targeting Legal Migration...Again
Trump’s attempt to block high skilled migrants from the U.S. pushes limits of president’s legal authority
Congress, which gets to create federal immigration law, has adopted a winding mix of reasons to welcome some people and keep out others. President Trump seems to think that’s just a starting point. Last week, he issued a presidential proclamation that brings to a screeching halt to entry by people who Congress thinks the United States should let in. Since Monday, immigration officials have been required to block some people trying to enter the United States on an H-1B visa unless they pay $100,000.
The H-1B visa is available to college-educated people who have a skill that is in demand by employers in the United States. An employer in need of skilled labor can sponsor a prospective employee who isn’t a U.S. citizen for an H-1B visa. No one can obtain an H-1B without a bachelor’s degree, though it’s common for successful H-1B visa applicants to also have a graduate degree. Tech companies and health care providers make frequent use of H-1B visas to staff skilled positions, but universities do too.
Late on Friday, the White House announced that Trump had added a major new requirement for entering the United States with an H-1B. On top of navigating the visa application bureaucracy, anyone who is granted an H-1B visa must pay the U.S. government $100,000 to enter. Since entry into the United States is the entire point of applying for a visa, the president’s command effectively adds a substantial – and unprecedented – eligibility criteria. The law that creates the H-1B visa says nothing about requiring hopeful migrants to pay any amount.
As with so many of Trump’s immigration policies, chaos quickly followed news of the president’s proclamation. The text of the directive published on the White House website says that it applies to everyone who hopes to enter after midnight on Monday, September 22. Taken at its words that would mean that anyone who is outside the United States – for a conference, vacation, or any other reason – would have to pay $100,000 to enter even if they had already been living here under that same visa.
Perhaps sensing, reasonably, that such a broad application would spark fierce backlash from employers, which courts would probably find compelling, the Department of Homeland Security quickly started to backtrack. In statements issued over the weekend, U.S. Citizenship and Immigration Services and Customs and Border Protection, the DHS units that handle visa applications and staff ports-of-entry, each announced that the new policy only applies to new applications. Anyone who already has an H-1B is unaffected, even if they are outside the United States, agency officials claim.
One glaring problem with the agencies’ effort to limit the chaos that the president’s announcement causes is that agencies don’t get to tell the president what to do. The president gets to set policy that the agencies then implement. So far, Trump hasn’t revised his order. That said, it is true that the agencies aren’t required to apply the policy as broadly as the president ordered. Whether it’s because of resource limits or implementation obstacles, they can choose to enforce the $100,000 payment requirement to a subset of migrants that fall within the president’s order. But at any moment, and without notice, they can alter course. If, for example, the president types out a message on social media demanding that the DHS apply the letter of his proclamation, I would expect that agency officials would quickly follow. Anyone who is currently living in the United States with an H-1B must decide whether it’s worth the risk to leave, hopeful that DHS doesn’t begin following the president’s order to its fullest extent before they return.
There’s little doubt that the president’s order will soon wind up in the courts. Back in June 2020, Trump tried to suspend entry of people with four types of visas, including the H-1B, claiming that they threatened to take jobs from U.S. citizens. For legal support, the Justice Department pointed to section 212(f) of the Immigration and Nationality Act, a sweeping power to bar entry of people who the president finds “would be detrimental to the interests of the United States.” Justice Department lawyers had good reason to stand on this section of immigration law because it had already survived a Supreme Court fight unscathed. Two years earlier, the Supreme Court had relied on 212(f) to uphold Trump’s travel ban. This provision “vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA,” Chief Justice John Roberts wrote for the majority of the court in Trump v. Hawaii.
Several business groups that traditionally aligned with Republicans, including the U.S. Chamber of Commerce, sued the Trump administration over the 2020 visa suspension. A federal court agreed. Section 212(f) is broad, but it’s not without limits, U.S. District Judge Jeffrey S. White explained in National Association of Manufacturers v. DHS. The provision gives the president flexibility when it comes to foreign affairs and national security, but trying to limit competition for jobs has nothing to do with either, the court added. Simply put, § 212(f) “does not afford the President unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners,” Judge White wrote. A different federal judge took much the same position in a lawsuit over Trump’s attempt to stop Harvard from enrolling students on three other visas, explaining that the law’s “purpose is to regulate and influence conduct abroad, rather than at home.”
Trump’s latest blunt-force limitation on legal migration reflects the same tension between the president’s power over migration and Trump’s willingness to go around the ordinary migration system to block whoever he wants, whenever he wants. The president’s directive claims that he can add a $100,000 fee for anyone to enter the United States on an H-1B visa. The DHS agency that receives and decides H-1B visa applications, U.S. Citizenship and Immigration Services, has in fact imposed a $780 application fee.
In addition to citing § 212(f), the proclamation also points to section 215(a) of the immigration act which allows the president to impose “reasonable rules, regulations, and orders” to enter the country. That’s an amorphous power that courts haven’t interpreted much. I couldn’t find an example of a court considering whether § 215(a) permits the president to impose a substantial requirement akin to a $100,000 payment. Maybe whoever files the first lawsuit over Trump’s attempt to keep highly skilled professionals out of the United States will dig deeper than me.
Separately, a sudden rules change like this is susceptible to a legal challenge under the Administrative Procedure Act, the federal law that governs how agencies go about their business. Agencies can alter policies to reflect shifting political priorities, but they must follow a detailed process involving public input.
I’m willing to bet that we won’t have long to wait before we learn which, if any, of those legal challenges convinces a court to block implementation of the president’s directive.