The Indian American attorney speaks about the plight of the H-1B workers in the aftermath of the pandemic.
Sheela Murthy, the founder of Murthy Law Firm, is one of the most prominent immigration lawyers in the nation. In an interview with the streaming platform Neestream America last month, Murthy spoke about the plight of the H-1B workers in the aftermath of the Covid-19 pandemic and other immigration-related issues. Here’s the edited transcript:
I’d like to start with the recent USCIS decision to give a 60-day grace period for some applicants. Can you talk a little bit more about that?
Sure so the USCIS had not planned to do anything about extensions but the American Immigration Lawyers Association or AILA actually sent a letter to the USCIS informing them that if they did not provide some kind of a grace period or time that AILA and other organizations and law firms were going to sue on behalf of their clients and so that might have helped motivate the USCIS into adding a 60-day grace period to most requests for evidence RFE’s, notice of intentions to deny NOIDs, NOIRs notice of intentions to revoke, motions to reopen and reconsider MTRs, or appeals. And in addition I think initially it was for two months o two and a half months and now they’ve extended it from March 1st of 2020 up through July 1st of 2020, any RFE, NOIR, NOID, MTR, or appeal that is due within those time frames will automatically get this additional 60-day time frame. As sometimes you say, “If goodness does not come from the bottom of your heart, the threat of a lawsuit sure can help.”
Will someone on H-1B who has lost their job also be a beneficiary of that? Will he or she be allowed to extend their stay in this country and look for jobs?
No, this does not provide any legal basis or status to anyone. They would have to file for another new status, whether it is a tourist visa, student visa, whatever other status that they hope to accomplish in this process.
Last month Trump issued an executive order putting on hold certain types of immigration for 60-days. What is the impact it’s having?
Good question, so the presidential proclamation that originally started with the tweet threatened to issue an executive order to temporarily suspend immigration to the United States that Monday evening in late April. He finally issued a presidential proclamation on a Wednesday day April 22nd of 2020 and in that presidential proclamation they talked about a temporary suspension for only certain kinds of green card holders and EB-5s or investor visas were exempted and those who already had obtained an immigrant visa were exempted. Basically it does not impact most of the people. he did mention one scary thing in the presidential proclamation, namely that he would, within 30 days, determine the fate of non-immigrant visa holders to the United States which would include H-1s and L-1s B-1 B-2 s and students and all the other categories. I think people are very nervous about that. The presidential proclamation became effective from Thursday April 23rd 11:59 p.m. Eastern Time and so within 30 days of that we don’t know what to expect but we know we’re dealing with a president and an administration that is not very Pro-immigrant or trying to take great care of immigrants or understanding the pivotal and critical role that immigrants are playing in technology, in business and industry, for overall, even in the student field, in STEM fields, as teachers, professors, researchers. So we have a lot that we have to be concerned about but right now what’s specifically impacted isn’t as scary and big as he made it sound in his tweet, causing panic and fear across the globe.
The last executive order, while it may certainly have certain implications for H-1B in the future, it didn’t necessarily affect H-1B directly, is that what you’re saying correct
Correct, that is correct. First of all, to clarify, it was not an executive order because he has been sued multiple times on executive orders and he realized that issuing it as a proclamation may prevent multiple lawsuits because last time when he tried to prevent citizens of certain countries from entering the United States which we call the Muslim ban, that did not work out really well, there were multiple lawsuits and finally an extremely watered-down version of that, what he had originally hoped, was finally allowed by the US Supreme Court. So this was a presidential proclamation, it’s pretty weak and I think he’s doing it to rouse up his base to try to get more votes in an election year and to pretend like he’s doing something, but I hope that the bark is much louder than the bite as they say.
Do you think he will tighten the noose around H-1B in the coming days?
I think he wants to put the fear of God in everybody, I think he’s trying to do something, but if he tries something I think a lot of employers, employees, and businesses are going to challenge him and file lawsuits, I know State Attorney General’s did that last time with his Muslim ban. so will he try he might because he’s done crazy stuff before that’s unfair and improper, but I think the greatness of America as I often say is the strong US Constitution and the ability to file a lawsuit and challenge the government and so I have every hope and confidence that if he were to transgress and go beyond what his executive powers allow him to do that we will absolutely challenge it in a court of law to seek justice for individuals, families, and employers who are being wrongly harmed by the president who does not understand that there is a balance of powers that the executives powers should be offset by the judiciary and the legislature and so we are going to have to file a case in court to require a restraint on him going haywire.
What do you think is likely to happen after 60 days?
After 60-days I’m hoping it’ll be gone, that his so-called temporary ban will be lifted, but if things with Covid-19 don’t continue to improve he may use that as the excuse. As you can see the entire excuse or the reason for this presidential proclamation was under the guise of trying to protect Americans and American jobs when so many of them are being laid off in a Covid-19 era but in fact he used this health care crisis to further his political agenda and not actually do anything substantive to help Americans or American jobs because none of these green card holders that were coming have taken away even one single job or coming to take away anything so I think he just tried to use scary words, barked loudly and hoped that his base that doesn’t understand the nuances and the subtleties of US immigration and how complex it is would say, “Oh there’s my friend fighting for me so let me vote for him again.” I hope it backfires, I hope all of the employers, and companies, and individuals who realize that what he’s doing is completely improper and in most cases illegal and unlawful will result in him not only not getting elected but hopefully suffering one of the biggest defeats in the history of our country.
Speaking more on unemployment, how many of these H-1B visa holders must have lost their jobs? If you could possibly ballpark a range for me, do you think it’s in the thousands maybe tens of thousands?
Okay so nobody has released data so the last thing I want to do as a professional is make up numbers out of thin air that are not proper or accurate because no information is better than completely wrong information however we know that approximately thirty million Americans or people have been furloughed or laid off and have applied in unemployment offices for unemployment insurance benefits and other forms of remedies available under the federal and state and local laws. we know that the percentage, in terms of US Department of Labor Statistics, with the number of foreign workers, is less than like two percent of the population so you do the math. thirty million two percent foreign nationals whether it’s H-1B or L-1s or OH-1s or P-1s but the majority are H-1B workers, professionals in the specialty occupation, so if it is 1% 2%, now we also know that generally people who are allowed to work from home, who have been less impacted, are those who have much higher levels of education and who are able to work remotely from home, you know off-site work and so even if it’s %1 or 2% we think it’s a much smaller number because again h-1Bs are not for those who are working in factories, in other kinds of more manufacturing related jobs, it tends to be more technology and that type of work, that is considered more based on a knowledge economy as opposed to a more industrial economy and so hopefully the impact is way, way less than the 1% of the people impacted but again until we get clear-cut statistics nobody should be throwing numbers out.
For those that have lost their jobs, are any of them getting new jobs and landing new visas, like how successful have they been?
If a person was already an H-1B petition or H-1B status, had an approval, was counted against the quota or numbers, my goal and my hope is that they will fairly easily be able to find a new job, a new employment, in order to be able to switch and change from employer A to employer B because again, remember a couple months ago, earlier this year, in January or February we were talking about 3.5% or less unemployment in America, we were talking about an economy that was chugging along brilliantly and beautifully, so none of the fundamentals of the US economy have changed. yeah of course we’ve had a huge, massive issue with Covid-19, the coronavirus, fear and panic and layoffs, especially in restaurant industries and certain fields maybe retail sector, certains jobs that are very directly and acutely impacted, but in the knowledge economy as I said earlier, I don’t know that there’s as direct an impact and most of these jobs are in such high demand and there’s such low supply and so much more demand that I’m hoping that if a person loses the job it’s just a matter of hopefully a few weeks and a couple months at the most, that they should get another job. If the person was on an H-1 before and has the prior H-1 still valid with a prior employer that H-1B work worker has 60-days of grace period if the I-94 card has not expired, for them that person to continue to stay, find a new job, find a new employer and hopefully within that 60-days the person can make the transition to the new job.
Will USCIS allow H-1B holders to reduce their work hours because of this extraordinary situation?
So many employers are reducing work across the board for all of their employees. The question is will the law allow it for H-1Bs? the employer is now supposed to file an H-1B amendment with the USCIS to reflect, for example, a change from 40 hours a week to 20 hours a week and so the employer must file that. if the employer doesn’t file it, potentially, technically, and arguably the USCIS and the US Department of Labor could allege that that H-1B worker has failed to maintain valid H-1B status because the H-1 petition was originally meant for full-time work at a particular location even regarding the work location because many people are now working from home because of Covid-19 and fear of transmission. Department of Labor has said as long as it’s temporary we will allow work from home without having to file a new petition or a new LCA but there’s a lot of gray areas and a lot of unanswered questions as of this day.
Have you have any of your clients filed for it?
Many of our clients have filed H-1 petitions. Many of them are choosing not to invest, the employers are saying I don’t want to waste more money hiring a lawyer and filing an amendment if it changes within the next few weeks or a month or two. We’re just going to continue and deal with it and if the government is going to be unreasonable we’ll determine at that point whether we need to challenge them or how we wish to respond to that issue.
There’s been a huge backlash against H-1B saying that American and Indian IT company these are using it to bring cheap labor abroad, undercutting the American labor market. How difficult a landscape will post-Covid America be for these H-1B visa holders?
Hopefully post-Covid-19 H-1B, L-1, and all of the other professionals that are in very high demand with short supply will continue to be in high demand because there is such a great need in, again as I said, a knowledge-based economy so when people say people are taking away jobs it shows their ignorance because there’s enough statistics and enough research that proves that each H-1 worker actually creates an additional 1.5-2 jobs in America by being there and by being around so if we decide to send most of them back trust me they will continue to do the work from anywhere in the world with the internet and with the ability to work remotely so what that means is America is going to lose people paying taxes, federal, state, and local taxes. America is going to lose selling expensive homes to these professionals who are making a good living. The American economy is going to be impacted negatively by these very smart bright talented people, many of whom start their own multi-billion dollar businesses as we can see from the success of Silicon Valley, if you decide that they need to go back to their irrespective countries. History is a very valuable teacher and as a history major I can say that and so I think it’s really not smart on our part as a country if we don’t understand and appreciate the value high-tech, highly qualified workers can bring to our country and to our economy.
I asked you how difficult in landscape postcode America would be for H-1B visa holders but what do you think the long-term implications of coronavirus are on immigration in general do you think the country would be more anti-immigrant or less so?
I think that the coronavirus hopefully, again I don’t have a crystal ball I have no idea how long and what’s gonna happen, but based on all of the experts the medical doctors and others you know if it’s true that might this fall or later this year, or even in six months to a year we actually get some kind of a vaccine or drugs or medication that can take care of it or even develop what’s called herd immunity to the Covid-19 then the hope is that we can all slowly but surely get back to where we were. In certain industries, in certain fields it may not happen as quickly. There may be certain businesses that may not come back for a long time, especially if a restaurant is shut down or has declared bankruptcy, I think that will be harder. But if the business is able to withstand the force of the gale winds that are happening with Covid-19 right now and they’re able to stand firm and somehow manage to withstand it I’m hopeful that we will come out. All of us, stronger and better, having learnt a few valuable lessons, going back to the fundamentals and the basics of how important it is for us to connect with each other as human beings, soul to soul, person to person, and not just as you know like a chess pawn to play a game with and that these are not just people, H-1B holders who are bringing jobs and money and economy, but people with families and lives who can contribute richly to the greatness of America as a nation of immigrants. That’s my hope, that’s my thought, and that’s my expectation, that at the end of the day H-1 holders and all other non-immigrants working in the United States have helped enrich America have made us a better and stronger country and that we will continue to do that with the help of these very talented and knowledgeable, specialized specialty occupation workers who are in high demand, who are in short supply because we are a knowledge-based economy and America needs them and if we don’t make it make them feel welcome in America they can work in American businesses, for the federal government, and all over by living and working anywhere in the world so it’s only going to help America if we acknowledge, respect them and open our arms and acknowledge how valuable they are to our country and to our economy.
Finally I want to ask you, what do you think is a future of H-1B, is it here to stay?
I think that our country needs H-1 professionals in the workplace. I know that we relied on them very, very heavily over the last 20 or 30+ years, forever, but more so since the tech revolution in the early 1990’s and whatever number we’ve had, we’ve used them up very quickly and it’s like a dry soil, when you pour a little bit water it gets absorbed so quickly, the H-1B numbers are used up so quickly because there’s such a huge demand for these workers. So the future, I don’t again have a crystal ball, but if I were to guess it will be we will continue to need them, we will continue to rely on them, we will continue to depend on these smart, bright, talented professionals in very specialized knowledge fields and if America is not going to open their arms and welcome them then they are going to work from different parts of the world enriching and helping those countries while also helping America meet a much needed demand and need. You know as Tom Friedman had said, “The world is flat, it’s getting flatter and flatter each day.”
And we can work from all over the world anywhere, so I think that things are only going to get better for them and if America is wise and smart, like we have been in the past, without pandering to people and political issues, I think we will all come out ahead by embracing, welcoming, and continuing to recognize and celebrate the fact that America is a nation largely built by immigrants for immigrants and a big portion of the reason we’re such a great superpower and a nation that is so powerful, rich, and successful is because we have relied on outsiders to give us fresh and new perspectives, to explain issues to us, and to look at issues from a completely different perspective, strengthening our country, our people and our economy.