Visa Restrictions Under the Trump Administration

By Jerome G. Grzeca Founder & Managing Partner, Grzeca Law Group, S.C. | December 23, 2018

While immigrants make up approximately 13 percent of the U.S. population, they account for nearly a third of hotel workers, making the hotel industry one of the largest employers of immigrant workers in the United States. Accordingly, hotels are heavily impacted by ever-changing immigration policies and restrictions, and for years, have struggled to fill jobs with the workers they need.

One example of the high demand for foreign workers can be seen in the H-2B visa program, a program commonly used by hotels, which allows U.S. employers to bring foreign nationals to the United States to fill temporary seasonal nonagricultural jobs. H-2B visas are statutorily capped at 66,000 per fiscal year, split evenly between the first and second half of the fiscal year. The number of H-2B visa applications have been steadily climbing since 2009 as demand for temporary workers has increased. In May 2018, Congress informed the U.S. Department of Homeland Security (DHS) to issue an additional 15,000 H-2B visas after finding there were not enough U.S. workers available to take the jobs.

Nonetheless, demand for temporary workers has continued to exceed the number of available visas, resulting in the cap being met earlier and earlier. This problem was further exacerbated by the loss of the "returning worker" exemption in 2016, which previously allowed workers who had already been in the U.S. on an H-2B visa during a certain timeframe to be exempt from the cap. In fact, for petitions requesting an April 1, 2019 start date, demand is expected to be so high that the U.S. Department of Labor (DOL) has announced that it will assign H-2B applications to adjudicators based on the time they were received, measured to the millisecond. Thus, filing at any time on January 1, 2019, the first available filing date, will no longer be sufficient to receive an H-2B visa.

Extreme Vetting of Applicants

Since taking office, President Trump has made clear that he intends to take action on his campaign promise of further restricting legal immigration, making it even harder for hotels to hire and keep the foreign workers they need. Just a week after his inauguration, President Trump issued an executive order titled "Protecting the Nation from Foreign Terrorist Entry into the United States," a revised version of which was issued in March 2017. While the order's infamous "travel ban," which restricted entry for individuals from six predominately Muslim countries, has received the most public attention, the order also calls for the implementation of heightened immigration screening standards, referred to as "extreme vetting," a directive which has had a profound effect on legal immigration across the board.

For example, the U.S. Department of State (DOS) has implemented a new supplemental screening form, DS-5535, to collect extensive information, such as travel, address, and employment history for the last 15 years, as well as social media information, from certain visa applicants who have either derived from, or traveled to, certain countries in the Middle East. In addition, we have seen an increased number of cases placed in "administrative processing," an additional stage of national security review, following the visa interview. While the DOS advises that most administrative processing cases are resolved within 60 days, many cases remain pending for much longer. This extremely burdensome process has resulted in some hotels having to revoke valid job offers in the United States because the property cannot wait six months for an employee while a U.S. Embassy further "reviews" the visa application.

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