US: New travel ban the latest change in immigration policy

The early months of Donald Trump’s presidency have been marked by a number of notable immigration developments, particularly a travel ban on seven Muslim-majority countries that was subsequently suspended by a US federal court. Earlier today, Mr Trump signed a new executive order that will reintroduce a modified ban for six of the seven countries as of 16 March. Under the new executive order, processing of new visas for citizens of Iran, Somalia, Sudan, Yemen, Syria, and Libya will be suspended for 90 days. During this period, US officials will be tasked to develop a plan for enhanced vetting procedures for visa applicants. There are, however, a number of notable differences between the 6 March order and the US administration’s earlier attempt to implement a travel ban.

• First and foremost, it applies only to new visas. Visas that have already been issued remain valid, and, as the Washington Post reported today, “Anyone who holds a visa now should be able to get into the country without any problems, though those whose visas expire will have to reapply, officials said.”

• The new order also excludes Iraq, which had been included in the original travel ban in January.

• Today’s order also provides for several exceptions to the travel ban that were not reflected in the January order. For example, legal permanent residents of the US, including those with dual citizenship, are excluded from the ban.

• The order also provides for case-by-case waivers in a number of cases, including those where “the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity.”

• Finally, rather than an indefinite ban on admitting Syrian refugees to the United States, the new executive order sets out a 120-day suspension of Syrian refugee processing. Indeed, the entire US Refugee Admissions Program has been suspended for 120 days, effective 16 March, and the US administration has indicated that it will not accept more than 50,000 refugees per year, down significantly from the 110,000-refugee cap in place under the Obama administration.

Even with those accommodations, the new order is bound to trigger considerable public and international reaction, and perhaps further legal challenges that will test these new provisions in a US court. The Association of International Education Administrators promptly released its response, and said, “In full solidarity with all those international students and scholars impacted by these new policies, we believe that international educators have a responsibility to reaffirm existing as well as build new alliances and networks beyond higher education to effectively advocate for the international flow of knowledge and people.” “The president’s new executive order on immigration – albeit an improvement over the original order banning immigrants from seven predominantly Muslim countries – remains overly broad in scope and threatens to adversely impact higher education in America,” added the American Association of State Colleges and Universities. “While we understand and respect the president’s stated goal of securing our homeland, we also believe that a categorical ban on the entry of individuals based purely on national origin will undermine the ability of our public institutions to attract the best minds to teach and study at our state colleges and universities.”

The perception question

Leaving aside the nuts and bolts of the executive order for a moment, the larger concern for many international educators is the message that such policies send to prospective students abroad. The Trump administration’s moves to limit travel to the US have introduced a fair measure of uncertainty for students in countries affected by the travel ban and otherwise. In a telling example of how this confusion is playing out around the world, the Nigerian government recently advised its citizens to suspend any non-urgent travel to the US “until there is clarity on the new immigration policy.” The move comes amid a Reuters report of several Nigerians with valid multiple-entry visas who had been denied entry to the US and sent back to Nigeria.

H-1B in play

In a related development that is being closely watched in key sending markets, the US administration has also signalled its intent to revise the H-1B visa programme. On 3 March, US Citizenship and Immigration Services announced that it would suspend expedited processing of H-1B visas as of 3 April, and that “the suspension may last up to 6 months” while it clears a backlog of pending files. The H-1B is commonly called a “working visa” as it is the most-frequently used type of visa for temporary employment status in the US. Currently, a limit of 65,000 new H-1B visas are granted annually (plus an additional 20,000 for those with advanced degrees), and in recent years the visas have been awarded on a lottery basis. In 2016, the number of applicants was nearly three times greater than that annual quota of 85,000 visas. Amidst a swirl of rumours of further executive orders to come, as well as various proposals for new H-1B rules, legislation to reform the H-1B process has been formally introduced in the US House of Representatives. One bill aims to eliminate the lottery system, and replace it with a “preference system” that would prioritise foreign students educated in the US, along with advanced degree-holders, and those with skills in high demand among US employers. The H-1B programme has particular relevance to technology industries in the US, and to Indian students who pursue advanced STEM degrees in America. IT has been criticised in the past, however, as a mechanism through which foreign outsourcing companies are able to displace American workers. The proposed changes are being closely watched as Mr Trump signalled early in his presidency that his administration would closely examine visa programmes “that undercut the American worker.” But entrepreneurship in the US, particularly in the tech sector, has had a very strong immigrant connection in recent years. A recent study finds that more than half of “unicorn” companies in the US – that is, privately held corporations worth US$1 billion or more – have at least one immigrant founder. If we expand that frame to include high-value companies with immigrants among their executive ranks, the percentage of immigrant-led unicorns rises to 70%. “Restrictions on immigration are going to hurt the tech sector and hurt the US economy more broadly,” Jon Zieger, of the payment processing company Stripe, said in a recent interview. “Immigration is fundamental to every industry that requires high-skilled and technical labor.” Any attempts to limit the H-1B visa pool will also occur against the backdrop of a rising tide of demand. While the H-1B quota has not increased in recent years, the number of applicants certainly has. Between 2014 and 2016 alone, the volume of H-1B applications grew by nearly 40%, resulting in an expanded pool of 236,000 candidates last year. And part of that growth is being driven in turn by a significant expansion of the Optional Practical Training (OPT) programme in the US, the number of participants in which grew by more than 250% over the past decade. Under OPT, foreign students may stay and work in the US for up to 12 months following graduation (or up to three years for foreign STEM graduates). And many students seek to progress to H-1B status following the conclusion of their OPT term. “Last year there were more than 52,000 Chinese graduates on OPT alone,” reports the Chronicle of Higher Education. “One in every six student-visa holders from China is, in fact, working, not studying, in the United States.” Late this afternoon, American Council on Education President Molly Corbett Broad released her organisation’s official statement on the latest travel ban. The ACE’s concern, she pointed out, was that the new executive order would create “a climate where it is far more difficult for international students and scholars to view this country as a welcoming place for study and research.” That is now the worry that hangs over the US administration’s approach to immigration policy, and it will accompany all of the debates to come around the newly reintroduced travel ban, H-1B reforms, and any other measures that will influence visa processing for international students and graduates. For additional background on US immigration policy, please see:

• “University officials and courts push back on US travel ban”
• “Power of perception: How the US presidential race could impact student recruitment”
• “US OPT rules confirmed: Foreign STEM grads can now stay and work for up to three years”