Donald Trump’s June 22, 2020, presidential proclamation appeared aimed at preventing the entry of foreign workers. However, the proclamation had another, equally important target – spouses and children.
Why would Trump and his team try to prevent the entry of spouses and children in a proclamation whose stated purpose was to “protect unemployed Americans”? The answer lies in the administration’s policy of separating Central American families who crossed the U.S. border, which took public anger over recordings of crying children being held in detention facilities to end.
In October 2018, Donald Trump made his intentions in separating children at the border from family members clear. “We have people trying to come in like never before,” said Trump. “If they feel there will be separation, then they won’t come.”
A similar logic seems behind the presidential proclamation. Catherine Rampell, a columnist for the Washington Post, recently wrote about Vihaan Baranidharan, who is 7-years-old: “Vihaan is stuck in India, where he went to see his sick grandmother for what was supposed to be a short visit. Thanks to Trump’s order, he’s blocked from getting the visa stamp needed to return to Dallas. But Vihaan has not taken, nor has any plans to take, any American’s job . . . Vihaan just finished first grade.”
The text of the proclamation singles out spouses and children as a “threat,” which means preventing 7-year-olds from joining their mothers or fathers in America was an intended, not an unintended, consequence. The proclamation reads: “Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.” As attorneys point out, the phrase “many of whom” is not true, even if one believed in the “lump of labor fallacy,” the discredited notion that there is a fixed quantity of labor needed in an economy on which the presidential proclamation is based.
“The universe of spouses and children entitled to work authorization in the U.S. is rather limited, so there’s scant economic rationale for barring them from entry,” said Vic Goel, managing partner of Goel & Anderson, in an interview. “Only spouses of L-1 and J-1 nonimmigrants are automatically entitled to apply for work authorization in the U.S, and spouses of H-1B workers qualify only when the principal H-1B worker has been approved or has experienced significant government delay for an application leading to permanent residence. Dependent spouses and children of H-2B workers are barred from working in the U.S., as are the children of H-1B and L-1 visa holders.” He also points out even if arriving dependents were eligible for work authorization, they would be unlikely to get approved before the end of the year.
After the harmful effects on families became publicly known, the Trump administration amended the proclamation to make it more restrictive. “Under the language of the original provision, having a valid visa of any category was sufficient to exempt an individual from the proclamation,” writes attorney Cyrus Mehta. “The amendment renders the proclamation even more restrictive, specifying that the visa must be a valid H-1B, H-2B, L, or certain J visas, and that the individual must be entering the United States pursuant to that visa to qualify for an exemption. . . . . Already, the proclamation is resulting in irreparable harm and separated families.”
Attorney Greg Siskind thinks families were targeted because Section 212(f) of the Immigration and Nationality Act, the authority used in the proclamation, limits the president’s power to restricting entry. He believes the more restrictive interpretation of the proclamation and the language on families allows the administration to go after people inside the country. “In effect, they’re forcing people to self-deport because they have found a permanent way to keep families separated,” he told me.
By “permanent,” Siskind refers to the open-ended nature of the proclamation, which “ends” on December 31, 2020, but could continue for an additional 4 years beyond that date if Donald Trump is reelected and no court limits the proclamation’s scope. Siskind expects foreign governments to retaliate against U.S. companies and their operations overseas if employees of multinational companies continue to be prohibited from entering the United States to work. (The proclamation prevents L visa holders from transferring into the United States.)
Jeffrey Gorsky of Berry, Appleman & Leiden believes that by including children, as well as spouses who are ineligible to work, the administration made the proclamations (of April 22, 2020, and June, 22, 2020) more vulnerable to legal challenge, since the alleged reason for the proclamations were economic.
He also points out the perverse, some might even say cruel, impact of the administration’s actions. He gives the example of an L visa holder “stuck in Europe because of another travel ban currently in place that bars anyone physically present in the Schengen region from coming to the U.S. unless they have been outside that region for 14 days.” Although as a current visa holder the woman would be exempt from the proclamation, that would not be the case for a child if she gives birth. “The newborn child will be subject to the new travel ban because, unlike the child’s mother, the child will not have a visa valid at the time of the effective date of the ban,” according to Gorsky. “As a result, the mother can return to her employment in the U.S., but the infant is barred from the U.S. on the legal grounds that the infant’s admission would be detrimental to the interests of the U.S. as a threat to U.S. employment.”
In addition to the proclamation, the Trump administration has promised to rescind the regulation that allows the spouses of H-1B visa holders to receive employment authorization documents (EADs); 93% of the spouses on EADs are women. The work authorization makes it easier for H-1B families to bear the long wait for employment-based green cards, which is what appears to have motivated administration officials to eliminate it.
A possible plan suggested in the June 22, 2020, proclamation could drive hundreds of thousands of long-time H-1B visa holders out of the United States. The plan, if the administration pursues it, would compel foreign nationals waiting years for employment-based green cards to go through “labor certification” again – a process in most cases completed years earlier – in the hopes many will not succeed, particularly if the administration changes the process to make it more difficult. Failure to pass a second labor certification could force H-1B visa holders waiting for green cards to leave the country.
“By barring spouses and children from entry when the principal temporary visa holder is already in the U.S., the proclamation inflicts much pain and suffering on those workers,” said Vic Goel. “It presents them with a choice of continuing their employment in the U.S. or leaving the country to be reunited with their family members.”
It appears those running U.S. immigration policy today do not believe it is sufficient to keep out highly skilled professionals, despite the economic cost to the nation. The evidence indicates Trump administration officials also want to drive out foreign-born scientists and engineers currently working in the United States. Separating high-skilled foreign nationals from their spouses and children as another way to achieve this goal is not only acceptable to administration officials, analysts note, it’s been planned out. As Donald Trump said about desperate Central American parents: “If they feel there will be separation, then they won’t come.”