The $100,000 Visa for Skilled Foreign Workers

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1:42This is Bloomberg Law with June Grosso from Bloomberg Radio. A shooter with a rifle opened fire from a nearby roof onto a U.S. Immigration and Customs Enforcement field office in Dallas today. Killing one detainee and injuring two others. Before taking his own life, the head of the FBI, Kash Patel, released a photo on social media that shows a bullet found at the scene with the words, Anti-Ice, written in what appears to be marker. The acting director of ICE, Todd Lyons, said there's been a rise in threats against ICE agents. All of our offices have an increased presence now with security from Federal Protective Services.

2:28Just because, like I said, assaults and threats on offices are up a thousand percent. This was the third shooting this year at a Department of Homeland Security facility in Texas. Joining me is immigration attorney Leon Fresco, a partner at Holland and Knight. Leon Ice says its officers are facing a more than 1 ,000 percent increase in threats and assaults against them. Leon Ice says that its officers are facing more than 1 ,000 percent increase in assaults against them, including vehicles being used as weapons toward them and doxing campaigns targeting officers and their families. These situations are terrible.

3:11The violence obviously has to stop against the ICE officers that are just there trying to do their job. In this particular instance, the individuals who ended up actually being shot were detainees. And so it's not clear what the shooter's intent is. But it's just a tough situation because it seems like just in general, in every aspect of things, The default becomes, if I don't get my way through the political process or through some other manner of violence, is the next mode of settling one's dispute. And everybody involved everywhere needs to end that ethos. Because you see it in all facets. It's in ICE.

3:55It's in the detention facilities. It's in society generally. I think everybody on all sides just needs to say violence is not the next step of dispute resolution. For instance, like litigation. Litigation is another way people use to resolve disputes. It's not violence. And that just has to be taken off the table by everyone involved. Immigration advocates and others have called out aggressive tactics by ICE agents. And on Saturday, California Governor Gavin Newsom signed a set of bills meant to check the Trump administration's aggressive immigration crackdown in California, including a first-in-the-nation measure to prohibit officers from wearing masks and others that limit their access to schools and hospitals.

4:43The question is whether a state law can be enforced on federal agents. Is that easily challengeable by the Trump administration? Well, absolutely. This is going to set up a preemption situation where there are sort of two preemption issues. One that will just be in the court, which is, is this law preempted? Does the state government ever have the ability to tell the federal government how or where it can enforce federal law within the context of a state? So that will be an issue that will be squarely and clearly teed up for the courts, which is different than the sanctuary city issue, because the sanctuary city issue is about whether a state or a city can be compelled to enforce federal law.

5:31That's different than a state or a city actually limiting the manner in which the federal government enforces its laws. So, for instance, could you imagine a state or a local government saying, in our state, we're not going to let the federal government come into somebody's house who committed federal tax violations. You're not allowed to do it. You have to follow this other procedure. So where would that end? And so you start asking those questions. but obviously the concern is a serious one. You want the police to identify themselves at all times, or ICE in this case, to identify themselves at all times, and not have a situation where ICE can easily be impersonated by other bad actors who aren't ICE.

6:16So everybody has some interest in coming into a more transparent process where it's clear that it is actual immigration enforcement officers, who they are, and that when someone is apprehended, that person can be identified and known where they're being housed and where they're being stationed so that the attorneys can get to them. So all of that is important. So the courts, one, will decide what is the level of preemption. But the other thing I was going to say is, to the extent that it's not preempted at the moment, the next question would be, well, what does someone do? Let's say you're at some state University and ICE shows up on campus, you literally call the university police.

6:58And what does the university police do? Do they actually arrest the ICE agents for violating the rules? This is where I think this gets very dicey. And I probably would say that that's not going to end up happening, that there's going to be state and local police that end up getting into confrontations with ICE or they start trying to arrest ICE agents. But theoretically, that is contemplated under the statute. And so I think sooner rather than later, this is going to have to be addressed by the court so that you never even get close to an unfortunate situation like that. And in 2018, California had passed a law to restrict immigration arrest at superior court buildings.

7:39But that hasn't stopped the Trump administration from detaining people at those courts this year. It's the question of whether there's an ability to enforce or not. Right. That's the point is whenever you write a law, that's only half of the game. The other half of the game is can you enforce the law? And if you cannot enforce whatever law you've written, then that law is meaningless. And so there's two levels of enforcement. So the first is will the courts allow it to be enforced? But the second is even if the courts allow it to be enforced, what actual human beings in California are actually going to try to enforce this law?

8:15And I think until both of those issues are addressed, I think you would say it's highly unlikely that the state would be able to take matters into its own hands, as has been attempted here. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On Public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English, like if the VIX hits 25, buy a put option on the S &P 500. Or if my cash balance goes above$20 ,000, move the excess into my direct index.

8:56You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures.

9:36Let's talk about health care for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a health care company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together.

10:15Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how.

11:02Let's create smarter business. IBM. President Donald Trump signed a proclamation on Friday that will require a$100 ,000 annual fee for H-1B visas, which enables skilled workers from overseas to temporarily work in the United States. Commerce Secretary Howard Lutnick said all big companies are on board. So the whole idea is no more will these big tech companies or other big companies train foreign workers. They have to pay the government$100 ,000, then they have to pay the employee. So it's just non-economic. If you're going to train somebody, you're going to train one of the recent graduates from one of the great universities across our land.

11:50Train Americans, stop bringing in people to take our jobs. That's the policy here. $100 ,000 a year for H-1B visas, and all of the big companies are on board. We've spoken to them about the gold card. They love it. They love it. They really love it. They need it. I've been talking to immigration attorney Leon Fresco of Holland and Knight. An immigration issue that's gotten a lot of attention is President Trump signing a proclamation on Friday that will require a$100 ,000 annual fee for H-1B visas, which allows skilled workers from overseas to temporarily work in the United States. I mean, what's the fee like now?

12:34At the moment, if an employer wins the lottery, because that's the first step of this, is that there are more people who want more businesses that want H-1B employees than there are slots, And there's 85 ,000 slots per year, and there's usually a demand of between 400 ,000 and 500 ,000 people that employers want to hire for these slots. And that's just on day one of the program. Over the rest of the year, there would be people who would apply, but they can't because the slots are all gone. But the point is that if you then win the lottery and you get one of those slots, it costs about$5 ,000 in fees to take that worker into your employee.

13:18So there's fees for the application. There's fees to get a decision in 15 days that most employers use because they don't want to wait a year or two to get an answer. So they get what's called premium processing. And there's two other fees. One, that's a fee to fight fraud in the system. So the money literally goes toward fraud investigators to make sure that nobody's gaming this system. And then there's another fee that actually goes toward the Department of Labor to train American workers to do high-skilled jobs. And so all of those fees add up to$5 ,000. and the idea would be that this proclamation, if enacted, would raise that fee to$100 ,000, but it's not clear where that money would go to.

14:04It would just go to the Treasury, and then within the Treasury, it can be allocated just, I suppose, for deficit reduction. Besides bringing that money into the Treasury, what's the underlying purpose of this? The purpose of that fee is ostensibly to say that if an employer is using the H-1B program not to hire a super skilled, highly talented employee where money isn't an object, but is instead trying to hire an employee for the purposes of undercutting the wage of a U.S. national that it otherwise would have hired, this takes that off the table because you would never do this. You would never pay an extra$100 ,000 to undercut the wages of an American.

14:52So the only reason you would pay$100 ,000 is because you were hiring the best of the best, and money is no object. You really need this individual. The problem is the language of that proclamation is under the travel ban authority. We've talked about this many times on the show. There's a statute called INA, Immigration Nationality Act, Section 212F, that basically gives the president almost unfettered authority to ban the entry of anyone the president thinks it's not in the interest of the United States to allow their entry. But the problem with that statute is it applies to banning entry. So the question is, if you are a foreign student who's now attending Harvard or who's attending Stanford or MIT or Caltech or something, and you now want to, after you graduate, get an H-1B because you've been hired by NVIDIA or you've been hired by Facebook or Intel or Google or something, you've already entered the country.

15:58So this doesn't apply to you. And so the question is, does everybody know that here? Does the administration think that those people are going to have to pay the$100 ,000 fee? Or does it know that, look, those people have entered, so they're not subject to the$100 ,000 fee? If the people already here, it's understood and everybody gets it, and it's clear that if the people already here as students in U.S. universities are not subject to the$100 ,000 fee, then this is going to apply to a lot fewer people than what I think the people who were initially cheering this proposal on, on the restriction side, would have thought.

16:41It's going to apply to significantly fewer people. And what it actually will turn out the most likely scenario is that this will basically only lead to a de facto ban on the ability of what are these famous Indian contractors like Wipro, Tata, Infosys, etc., who hire more people from India directly than they do from U.S. universities. those people will end up being effectively banned because they will not pay$100 ,000 for those workers. And so if this survives litigation, that's probably who's going to be banned here. Leon, does the Trump administration have the authority, the statutory authority, to impose this$100 ,000 fee?

17:26Because isn't the fee supposed to cover the costs of processing the application? So this is very interesting because there's a very similar type of litigation with regard to asylum, where there's a whole set of asylum statutes. And then there's another one that says, yeah, but you can deny asylum for any discretionary reason. And then the courts have been fighting this out and they're still fighting it out. Which card trumps the other card? Does the ace trump the joker? Does the joker trump the ace? Same situation here. You have a large, exhaustive set of H-1B statutory regime that's very clear and that you cannot change by regulation or presidential proclamation or anything else.

18:09So you would think that that would win. But you also have another statute, which is the INA-212F, that says that the president can ban anyone that the president wants for issues of public interest and can set any conditions upon entry that the president wants. So the president is saying, well, here's a condition I'm setting upon entry. So, for instance, in 2020, 2021, there actually was a ban on these H-1B holders under the COVID protocol. Those folks were banned and they couldn't come in the country. And so this is just the same thing. It's a ban, but rather than being a complete and total ban, it's a ban which you can circumvent by paying$100 ,000 fee.

18:50And so when the courts analyze this, which card will be the Trump card? Will it be the banning statute that says no matter who you are, if you're any foreign national of any kind, the president can set these conditions and terms for letting you in the country? Or will it be the large H-1B statutory scheme under the idea that you can't have an exception that swallows the entire rule of immigration law so that the president can just rewrite the entire immigration code with the INA-212F authority? So that's really the question for the courts is, can the president basically use INA-212F authority to rewrite the entire immigration code in the way the president wants to?

19:37Or is that overdoing it? And when there's a statutory regime like the H-1B, which is very extensive and lays out how many days the government has to make a decision, et cetera, et cetera, it's very detailed, unlike most statutes. Does that actually win the debate? And we're going to have to wait and see. The president also wants to change the lottery system. Can you explain what he's trying to do there? Yes, it's very simple. What happens is every March, there's 400 ,000 people that want to get an H-1B visa. There's 85 ,000 slots. They have a lottery. It's a blind lottery. 85 ,000 people win, 325 ,000 lose.

20:18They want to change that to basically weight the system. So what they want to do is they want to find out what kind of job are you coming to do, where are you coming to do the job, and how much are you going to be paid? Because the Department of Labor has surveys, and they'll say, oh, the average lawyer in San Francisco makes$250 ,000 a year, but in the top 25%, that lawyer will make$350 ,000. Or the bottom 25%, that lawyer will make$100 ,000. And so they put those as levels. Level four is the top level. Level one is the bottom level. So what they want to do is to say, if you will agree upfront that you will pay your worker the level four wage for that occupation in that location, your worker will get four lottery balls, essentially.

21:14instead of one. And if you pay the level three wage, your worker will get three lottery balls. And if you pay the level two wage, your worker will get two lottery balls. And if you only want to pay the initial level one wage, which is the bottom 25%, your worker will get one lottery ball. And that's how they'll allocate the lottery with the hope and the intention that the 85 ,000 slots will be allocated toward the highest paid individuals as opposed to just a random allocation. Now, obviously, there's going to be companies who pay level one wages who will try to sue and make the same types of arguments here again.

21:55It's going to be the 50-50 argument. Is there regulatory authority under, and here, there's another catch-all provision in what's called INA Section 214 that says that in non-immigrant visas, which is what H-1B is, the president by regulation can set the terms and conditions. And so that's what the president is trying to do here. But there's also, again, as I indicated previously, this very long statutory authority for H-1B, what you can do, what you can't do, which every time somebody tries to tinker with it, they lose in court. So the question is, who wins there? Does the president win under the catch-all authority, or does the companies that are going to sue win because they say, no, this has to be done by Congress.

22:42It cannot be done by regulation. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions, buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined.

23:23An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., Member FINRA, and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling.

24:04The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together. Technology designed to help doctors spend less time on busy work and more time with their patients.

24:37And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how.

25:23Let's turn now to what's happening in immigration courts with bonds. For decades, immigration judges have granted bonds to immigrants in detention who the court determined would show up for future hearings and were not public safety threats. But now the Trump administration, specifically the Board of Immigration Appeals, which has a majority of Trump appointees on it, has made a new policy binding on all immigration judges that they can't grant bonds to people who cross the border unlawfully. So this policy is being challenged in federal court by civil rights and immigration advocacy groups. What do you think their chances are?

26:06So here's what's complicated about this case. You have a situation where previously, if someone was placed in deportation proceedings after being here for some amount of time, then they could make an argument that they could be released on bond while those proceedings were pending. because the whole point of the immigration system is it's not a criminal system. It's a civil system. And so typically the law does not favor detention for civil anything. Detention is meant for criminal proceedings. And even most criminals, when they're going through criminal proceedings, have bonds that they can either apply for or not.

26:49Now, what's complicated here is the law was that, again, like I said, everybody used to be able to apply for bond with two exceptions. If you had certain criminal convictions, the Supreme Court has said you're not eligible for bond because the statutory authority says you're not. And secondly, if you just arrived into the U.S., meaning you were apprehended at the airport or you were apprehended trying to cross the border right at that moment, then the idea was, look, we detain you, we keep you in detention, at least subject to having enough beds. We don't reward this effort to cross the border by letting you out.

27:28We keep you in detention until we decide if you have a case to remain, or if you don't have a case to remain, you get booted out. But the question is, what happens with people who cross the border illegally, but we didn't realize it until five years later, ten years later, etc.? And so historically, those people were allowed to get bond hearings because the idea was they were already here. They were circulating in the United States. They presumably hadn't committed any criminal offenses other than the initial offense of crossing illegally. But now the administration is saying, look, this original thing that says that if we apprehend you crossing the border, we have to keep you detained forever while the proceedings are pending, there's no bond.

28:17That applies whether it took us one minute or whether it took us five years to catch you. So that's the change in the interpretation. So this doesn't apply to someone who came legally and overstayed their visa. They can still get a bond during their removal hearing. But this applies to the person who crossed illegally and they were never apprehended. And so this is really going to come down to more, I think, of a constitutional due process argument rather than a statutory argument. Because the statute, interestingly, I think is 50-50, but what happened was it was always interpreted in the way that you get bond because people were worried about the fact that how could someone have been here five years or 10 years and circulating amongst the United States, not committing any crimes, etc.