September 24, 2025 • 24 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the changes President Trump is proposing in the H-1B visas for skilled foreign workers and the changes in bonds for detained migrants who crossed the border illegally. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
A shooter with a rifle opened fire from a nearby
roof onto a US 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,
Cash Patel, released a photo on social media that shows
a bullet found at the scene with the words anti
(00:31):
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.
Speaker 1 (00:42):
All of our officers have an increased presence now with
security from Federal Protective Services just because, like I said,
assaults in a threats on officer of one thousand percent.
Speaker 2 (00:52):
This was the third shooting this year at a Department
of Homeland Security facility in Texas. Joining me is Immigrat
attorney Leon Fresco, a partner at Hound and Knight. Leon
I says it's officers are facing a more than one
thousand percent increase in threats and assaults against them. Leon
(01:13):
I says that it's officers are facing more than a
thousand percent increase in assaults against them, including vehicles being
used as weapons toward them, and doxing campaigns targeting officers
and their families.
Speaker 3 (01:29):
These situations are terrible. The violence obviously has to stop
against the ICE officers that are just there trying to
do their job.
Speaker 4 (01:39):
In this particular.
Speaker 3 (01:40):
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 police process
(02:00):
or through some other manner, violence is the next mode
of settling one's dispute, and everybody involved everywhere needs to
end that ethos because you see, it's in all facets,
it denies, it's in the detention facilities, it's in society generally.
I think everybody on all side just needs to say
(02:22):
violence is not the next stept of dispute resolution, for instance,
like litigation. Litigation is another way people used to resolve disputes.
It's not violent, and that just has to be taken
up the table by everyone involved.
Speaker 2 (02:36):
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 other
(03:00):
is that limit their access to schools and hospitals. The
question is whether a state law can be enforced on
federal agents. Is that easily challengeable by the Trump administration?
Speaker 3 (03:14):
Well, absolutely, This is going to set up a preemption
situation where there's sort of two preemption issues. One that'll
just be in the court, which is, if this law presented,
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
(03:37):
be an issue that will be squarely and clearly tied
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. That's different than the state or a city
actually limiting the manner in which the federal government enforces
(03:57):
its laws. So, for instance, could you amine 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
(04:19):
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, then not
have a situation where ICE can can easily be impersonated
by other bad actors who will aren't Ice. So everybody
has some interest in coming into a more transparent process
(04:41):
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
pre empsion. But the other thing I was going to
(05:02):
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. Do you literally call the
university police? And what does the university police do? Do
they actually arrest the ICE agents for violating the rules?
(05:25):
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
(05:45):
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 this.
Speaker 2 (05:52):
And in twenty eighteen, California had passed a law to
restrict immigration arrest at superior court buildings, but 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.
Speaker 3 (06:09):
Right, That's the point is, whenever you write a law,
that's only half of the game.
Speaker 4 (06:14):
The other half of the game is can.
Speaker 3 (06:15):
You enforce the law?
Speaker 4 (06:17):
And if you cannot enforce.
Speaker 3 (06:18):
Whatever law you've written, and that law's 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? And I think until both of
those issues are addressed, I think you would say it's
(06:39):
highly unlikely that the state would be able to take
matters into its own hands, as has been attempted here.
Speaker 2 (06:47):
President Donald Trump signed a proclamation on Friday that will
require a one hundred thousand dollars annual fee for H
one B 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.
Speaker 5 (07:09):
So the whole idea is no more with these big
tech companies or other big companies train foreign workers. They
have to pay the government one hundred thousand dollars, 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. Train Americans. Stop bringing in people
(07:33):
to take our jobs. That's the policy here, one hundred
thousand dollars a year for H one B visas, and
all of the big companies are on board. We've spoken
to them about the Golden Card.
Speaker 4 (07:45):
They love us, they love it, they really love it.
They need it.
Speaker 2 (07:48):
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 frey that
will require one hundred thousand dollars annual fee for H
one B visas, which allows skilled workers from overseas to
(08:09):
temporarily work in the United States. I mean, what's the
fee like now at.
Speaker 3 (08:15):
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 one B
employees than there are slots. And there's eighty five thousand
slots per year, and there's usually a demand of between
four hundred and five hundred thousand people that employers want
to hire for these slots. And that's just on day
(08:38):
one of the programs. Over the rest of the year,
there'd be people who would apply, but they can't because
the slots are all gone.
Speaker 4 (08:45):
But the point is.
Speaker 3 (08:46):
That if you then win the lottery and you get
one of those slots.
Speaker 4 (08:51):
It costs about five thousand.
Speaker 3 (08:53):
Dollars in fees to take that worker into your employee.
So there's fees for the application. There's fees to get
a decision in fifteen days that most employers use because
they don't want to wait a year or two to
get an answer. So they said they get what's called
premium processing. And there's two other fees. One that's a
(09:13):
fee to fight fraud in the system, so the money
literally goes toward fraud investigators to make sure that nobody's
gaming the system. And then there's another fee that actually
goes toward the Department of Labor to train American workers
to do high skill jobs. And so all of those
fees aed up to five thousand dollars, and the idea
(09:36):
would be that this proclamation, if enacted, would raise that
fee to one hundred thousand, but it's not clear where
that money would go to. It would just go to
the treasury, and then within the treasury it can be
allocated just I suppose for deficit reduction.
Speaker 2 (09:53):
Besides bringing that money into the treasury, what's the underlying
purpose of this.
Speaker 3 (09:59):
The purpose of that fee is ostensibly to say that
if an employer is using the H one B program
not to hire a super skilled, highly talented employee where
money isn't an object, but as instead trying to hire
an employee for the purposes of undercutting the wage of
(10:20):
a US 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 one hundred thousand dollars
to undercut the wages of an American. So the only
reason you would pay one hundred thousand dollars is because
you were hiring the best of the best, and money
is no object. You really need this individual.
Speaker 4 (10:42):
The problem is the.
Speaker 3 (10:45):
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 IA Immigration Nationality Act, Section two twelve
that basically gives the president almost unfettered authority to ban
the entry of anyone the president thinks it's not in
(11:05):
the interests 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 cal Tech or something, and you now
want to after you graduate, get an H one B
(11:28):
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, so this doesn't apply to you.
Speaker 4 (11:41):
And so the.
Speaker 3 (11:41):
Question is, does everybody know that here, does the administration
think that those people are going to have to pay
the one hundred thousand dollars fee or does it know that, Look,
those people have entered, so they're not subject to one
hundred thousand fee. If the people already here, it's understood
and everybody gets it, and it's clear that if the
(12:03):
people already here as students in US universities are not
subject to the one hundred thousand feet then this is
going to apply to a lot fewer people than what
I think the people who are initially cheering this proposal
on on the restriction AST side would have thought it's
going to apply to significantly fewer people and what it
(12:25):
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 Whipro, Tata, Infoss, etc. Who hire more people from
India directly than they do from US universities. Those people
(12:48):
will end up being effectively banned because they will not
pay one hundred thousand for those workers. And so if
this survives litigation, that's probably who's going to be banned here,
leon does.
Speaker 2 (12:58):
The Trump administration have the authority, the statutory authority to
impose this one hundred thousand dollars fee because isn't the
fee supposed to cover the costs of processing the application?
Speaker 3 (13:12):
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 that the courts have been fighting this
out and they're still fighting it out. Which card Trump's
the other card? Does the eight trump the joker? Does
(13:34):
the joker trump the eight? Same situation here, you have
a large exhaustive set of H one B statutory regime
that's very clear and that you cannot change by regulation
or presidential proclamation or anything else. So you would think
that that would win. But you also have another statute,
which is the IA two twelve F that says that
(13:57):
the president can ban anyone that the president wants for
issues of public interest, and can set any conditions upon entry.
Speaker 4 (14:05):
That the president wants. So the president is.
Speaker 3 (14:07):
Saying, well, here's a condition I'm setting upon entry.
Speaker 4 (14:10):
So, for instance, in twenty twenty, twenty twenty.
Speaker 3 (14:13):
One, there actually was a ban on these H one
be 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 one hundred thousand dollars fee.
And so when the courts analyze this, which card will
(14:35):
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 one B statutory scheme
under the idea that you can't have an exception that
(14:56):
swallows the entire rule of immigration law so that the
president can just rewrite the entire immigration code with the
INA to twelve authority. So that's really the question for
the course is can the president basically use INA two
twelve F authority to rewrite the entire immigration code in
the way the president wants to?
Speaker 4 (15:18):
Or is that overdoing it?
Speaker 3 (15:20):
And when there's a statutory regime like the H one
B 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?
Speaker 4 (15:34):
And we're gonna have to wait and see.
Speaker 2 (15:37):
The President also wants to change the lottery system. Can
you explain what he's trying.
Speaker 1 (15:42):
To do there?
Speaker 3 (15:43):
Yes, this is very simple. What happens is every March,
there's four hundred thousand people that want to get an
H one B visa. There's eighty five thousand slots. They
have a lottery. It's a blind lottery. Eighty five thousand
people win three hundred and twenty five thousand loose. They
want to change that to basically weight the system.
Speaker 4 (16:03):
So what they want to do is they.
Speaker 3 (16:05):
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, the average lawyer in San Francisco makes two
hundred and fifty thousand dollars a year, but in the
(16:26):
top twenty five percent, that lawyer will make three hundred
and fifty thousand, or the bottom twenty five percent that
lawyer will make one hundred thousand, 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
(16:48):
that occupation in that location, your worker will get four
lottery balls essentially instead of one. And if you pay
the level three ways, your worker will get three lottery
bus 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
(17:09):
the bottom twenty five percent, your worker will get one
lottery ball. And that's how they'll allocate the lottery with
the hope and the intention that the eighty five thousand
plus will be allocated towards the highest paid individuals as
opposed to just a random allocation. Now that obviously there's
going to be companies who pay level one wages who
(17:32):
will try to sue and make the same types of
arguments here again it's going to be the fifty to
fifty argument. Is there regulatory authority under and here there's
another catch all provision in what's called IMA Section two
fourteen that says that in non immigrant visas, which is
what H one B is, the president by regulation can
(17:53):
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, pre this very long statutory authority for
H one B. What you can do what you can't do,
which every time somebody tries the thinker with it, they
lose in court. So the question is who wins there?
(18:13):
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,
it cannot be done by regulation.
Speaker 2 (18:25):
Let's turn out to what's happening in immigration courts with bonds.
For decades, immigration judges have granted bonds to immigrants and
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
(18:45):
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. See
is being challenged in federal court by civil rights and
immigration advocacy groups. What do you think their chances are?
Speaker 3 (19:08):
So, 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
(19:28):
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. It's detension is meant
for criminal proceedings. And even most criminals when they're going
through criminal proceedings have bond that they can either apply
(19:49):
for or not. Now what's complicated here is the law
was that Again, like I said, everybody used to be
able to apply for bond, with two exception 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 US, meaning
(20:13):
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 across the border by letting you out.
We keep you in detention until we decide if you
have a case to remain or if you don't have
(20:35):
a case to remain, you get booted out. But the
question is what happens with people who crossed the border illegally,
but we didn't realize it until five years later, ten
years later, et cetera. And so historically those people were
allowed to get bond hearings because the idea was they
were already here, they were circulating.
Speaker 4 (20:56):
In the United States.
Speaker 3 (20:58):
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 where the proceedings are pending, there's no bond that
(21:19):
applies whether it took us one minute or whether it
took us five years to cut you. So that's the
change in the interpretation. So this doesn't apply to someone
who came legally and overstated 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
(21:41):
more I think of a constitutional due process argument rather
than a statutory argument, because the statute, interestingly, I think
it's fifty to fifty. But what happened was it was
always interpreted in the way that you get bond because
people were worried.
Speaker 4 (22:01):
About the fact that how could someone.
Speaker 3 (22:02):
Have been here five years or ten years and circulating
amongst the United States, not committing any crimes, etc. And
then for a civil proceeding you would deny them bond,
when if this were a criminal proceeding, they would be
eligible for bond. What would be the constitutional authority to
keep someone mandatorily detained like that, And so they always
(22:26):
interpreted the statute in a cautious manner to say, no, no, no,
give those people a bond hearing, and if they are
dangerous or if some other reason exist, been fine, you
can deny them bond. But if they're not dangerous, you
have to let them out because they had already been
out for such a long time. So ultimately the courts
are going to have to struggle with not what the
(22:46):
statute means, because the statute actually probably supports the argument
that if someone processes the border illegally, whenever they're found,
you have to detain them, but really the constitutionality of
that concept, because the issue is that someone's really been
here for that long. Is it constitutional to have them
(23:09):
detained with no bonds for a civil proceeding when the
constitution ab whores any kind of civil detention period, And
so I think that's going to be the main question here.
Speaker 2 (23:21):
Always a lot of questions and not that many clear
answers in our immigration law system. Thanks so much, Leon.
That's Leon Fresco of Holland and Knight, And that's it
for this edition. Of the Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
(23:42):
and at www dot bloomberg dot com, slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
A shooter with a rifle opened fire from a nearby
roof onto a US 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,
Cash Patel, released a photo on social media that shows
a bullet found at the scene with the words anti
(00:31):
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.
Speaker 1 (00:42):
All of our officers have an increased presence now with
security from Federal Protective Services just because, like I said,
assaults in a threats on officer of one thousand percent.
Speaker 2 (00:52):
This was the third shooting this year at a Department
of Homeland Security facility in Texas. Joining me is Immigrat
attorney Leon Fresco, a partner at Hound and Knight. Leon
I says it's officers are facing a more than one
thousand percent increase in threats and assaults against them. Leon
(01:13):
I says that it's officers are facing more than a
thousand percent increase in assaults against them, including vehicles being
used as weapons toward them, and doxing campaigns targeting officers
and their families.
Speaker 3 (01:29):
These situations are terrible. The violence obviously has to stop
against the ICE officers that are just there trying to
do their job.
Speaker 4 (01:39):
In this particular.
Speaker 3 (01:40):
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 police process
(02:00):
or through some other manner, violence is the next mode
of settling one's dispute, and everybody involved everywhere needs to
end that ethos because you see, it's in all facets,
it denies, it's in the detention facilities, it's in society generally.
I think everybody on all side just needs to say
(02:22):
violence is not the next stept of dispute resolution, for instance,
like litigation. Litigation is another way people used to resolve disputes.
It's not violent, and that just has to be taken
up the table by everyone involved.
Speaker 2 (02:36):
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 other
(03:00):
is that limit their access to schools and hospitals. The
question is whether a state law can be enforced on
federal agents. Is that easily challengeable by the Trump administration?
Speaker 3 (03:14):
Well, absolutely, This is going to set up a preemption
situation where there's sort of two preemption issues. One that'll
just be in the court, which is, if this law presented,
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
(03:37):
be an issue that will be squarely and clearly tied
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. That's different than the state or a city
actually limiting the manner in which the federal government enforces
(03:57):
its laws. So, for instance, could you amine 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
(04:19):
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, then not
have a situation where ICE can can easily be impersonated
by other bad actors who will aren't Ice. So everybody
has some interest in coming into a more transparent process
(04:41):
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
pre empsion. But the other thing I was going to
(05:02):
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. Do you literally call the
university police? And what does the university police do? Do
they actually arrest the ICE agents for violating the rules?
(05:25):
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
(05:45):
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 this.
Speaker 2 (05:52):
And in twenty eighteen, California had passed a law to
restrict immigration arrest at superior court buildings, but 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.
Speaker 3 (06:09):
Right, That's the point is, whenever you write a law,
that's only half of the game.
Speaker 4 (06:14):
The other half of the game is can.
Speaker 3 (06:15):
You enforce the law?
Speaker 4 (06:17):
And if you cannot enforce.
Speaker 3 (06:18):
Whatever law you've written, and that law's 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? And I think until both of
those issues are addressed, I think you would say it's
(06:39):
highly unlikely that the state would be able to take
matters into its own hands, as has been attempted here.
Speaker 2 (06:47):
President Donald Trump signed a proclamation on Friday that will
require a one hundred thousand dollars annual fee for H
one B 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.
Speaker 5 (07:09):
So the whole idea is no more with these big
tech companies or other big companies train foreign workers. They
have to pay the government one hundred thousand dollars, 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. Train Americans. Stop bringing in people
(07:33):
to take our jobs. That's the policy here, one hundred
thousand dollars a year for H one B visas, and
all of the big companies are on board. We've spoken
to them about the Golden Card.
Speaker 4 (07:45):
They love us, they love it, they really love it.
They need it.
Speaker 2 (07:48):
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 frey that
will require one hundred thousand dollars annual fee for H
one B visas, which allows skilled workers from overseas to
(08:09):
temporarily work in the United States. I mean, what's the
fee like now at.
Speaker 3 (08:15):
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 one B
employees than there are slots. And there's eighty five thousand
slots per year, and there's usually a demand of between
four hundred and five hundred thousand people that employers want
to hire for these slots. And that's just on day
(08:38):
one of the programs. Over the rest of the year,
there'd be people who would apply, but they can't because
the slots are all gone.
Speaker 4 (08:45):
But the point is.
Speaker 3 (08:46):
That if you then win the lottery and you get
one of those slots.
Speaker 4 (08:51):
It costs about five thousand.
Speaker 3 (08:53):
Dollars in fees to take that worker into your employee.
So there's fees for the application. There's fees to get
a decision in fifteen days that most employers use because
they don't want to wait a year or two to
get an answer. So they said they get what's called
premium processing. And there's two other fees. One that's a
(09:13):
fee to fight fraud in the system, so the money
literally goes toward fraud investigators to make sure that nobody's
gaming the system. And then there's another fee that actually
goes toward the Department of Labor to train American workers
to do high skill jobs. And so all of those
fees aed up to five thousand dollars, and the idea
(09:36):
would be that this proclamation, if enacted, would raise that
fee to one hundred thousand, but it's not clear where
that money would go to. It would just go to
the treasury, and then within the treasury it can be
allocated just I suppose for deficit reduction.
Speaker 2 (09:53):
Besides bringing that money into the treasury, what's the underlying
purpose of this.
Speaker 3 (09:59):
The purpose of that fee is ostensibly to say that
if an employer is using the H one B program
not to hire a super skilled, highly talented employee where
money isn't an object, but as instead trying to hire
an employee for the purposes of undercutting the wage of
(10:20):
a US 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 one hundred thousand dollars
to undercut the wages of an American. So the only
reason you would pay one hundred thousand dollars is because
you were hiring the best of the best, and money
is no object. You really need this individual.
Speaker 4 (10:42):
The problem is the.
Speaker 3 (10:45):
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 IA Immigration Nationality Act, Section two twelve
that basically gives the president almost unfettered authority to ban
the entry of anyone the president thinks it's not in
(11:05):
the interests 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 cal Tech or something, and you now
want to after you graduate, get an H one B
(11:28):
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, so this doesn't apply to you.
Speaker 4 (11:41):
And so the.
Speaker 3 (11:41):
Question is, does everybody know that here, does the administration
think that those people are going to have to pay
the one hundred thousand dollars fee or does it know that, Look,
those people have entered, so they're not subject to one
hundred thousand fee. If the people already here, it's understood
and everybody gets it, and it's clear that if the
(12:03):
people already here as students in US universities are not
subject to the one hundred thousand feet then this is
going to apply to a lot fewer people than what
I think the people who are initially cheering this proposal
on on the restriction AST side would have thought it's
going to apply to significantly fewer people and what it
(12:25):
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 Whipro, Tata, Infoss, etc. Who hire more people from
India directly than they do from US universities. Those people
(12:48):
will end up being effectively banned because they will not
pay one hundred thousand for those workers. And so if
this survives litigation, that's probably who's going to be banned here,
leon does.
Speaker 2 (12:58):
The Trump administration have the authority, the statutory authority to
impose this one hundred thousand dollars fee because isn't the
fee supposed to cover the costs of processing the application?
Speaker 3 (13:12):
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 that the courts have been fighting this
out and they're still fighting it out. Which card Trump's
the other card? Does the eight trump the joker? Does
(13:34):
the joker trump the eight? Same situation here, you have
a large exhaustive set of H one B statutory regime
that's very clear and that you cannot change by regulation
or presidential proclamation or anything else. So you would think
that that would win. But you also have another statute,
which is the IA two twelve F that says that
(13:57):
the president can ban anyone that the president wants for
issues of public interest, and can set any conditions upon entry.
Speaker 4 (14:05):
That the president wants. So the president is.
Speaker 3 (14:07):
Saying, well, here's a condition I'm setting upon entry.
Speaker 4 (14:10):
So, for instance, in twenty twenty, twenty twenty.
Speaker 3 (14:13):
One, there actually was a ban on these H one
be 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 one hundred thousand dollars fee.
And so when the courts analyze this, which card will
(14:35):
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 one B statutory scheme
under the idea that you can't have an exception that
(14:56):
swallows the entire rule of immigration law so that the
president can just rewrite the entire immigration code with the
INA to twelve authority. So that's really the question for
the course is can the president basically use INA two
twelve F authority to rewrite the entire immigration code in
the way the president wants to?
Speaker 4 (15:18):
Or is that overdoing it?
Speaker 3 (15:20):
And when there's a statutory regime like the H one
B 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?
Speaker 4 (15:34):
And we're gonna have to wait and see.
Speaker 2 (15:37):
The President also wants to change the lottery system. Can
you explain what he's trying.
Speaker 1 (15:42):
To do there?
Speaker 3 (15:43):
Yes, this is very simple. What happens is every March,
there's four hundred thousand people that want to get an
H one B visa. There's eighty five thousand slots. They
have a lottery. It's a blind lottery. Eighty five thousand
people win three hundred and twenty five thousand loose. They
want to change that to basically weight the system.
Speaker 4 (16:03):
So what they want to do is they.
Speaker 3 (16:05):
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, the average lawyer in San Francisco makes two
hundred and fifty thousand dollars a year, but in the
(16:26):
top twenty five percent, that lawyer will make three hundred
and fifty thousand, or the bottom twenty five percent that
lawyer will make one hundred thousand, 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
(16:48):
that occupation in that location, your worker will get four
lottery balls essentially instead of one. And if you pay
the level three ways, your worker will get three lottery
bus 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
(17:09):
the bottom twenty five percent, your worker will get one
lottery ball. And that's how they'll allocate the lottery with
the hope and the intention that the eighty five thousand
plus will be allocated towards the highest paid individuals as
opposed to just a random allocation. Now that obviously there's
going to be companies who pay level one wages who
(17:32):
will try to sue and make the same types of
arguments here again it's going to be the fifty to
fifty argument. Is there regulatory authority under and here there's
another catch all provision in what's called IMA Section two
fourteen that says that in non immigrant visas, which is
what H one B is, the president by regulation can
(17:53):
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, pre this very long statutory authority for
H one B. What you can do what you can't do,
which every time somebody tries the thinker with it, they
lose in court. So the question is who wins there?
(18:13):
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,
it cannot be done by regulation.
Speaker 2 (18:25):
Let's turn out to what's happening in immigration courts with bonds.
For decades, immigration judges have granted bonds to immigrants and
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
(18:45):
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. See
is being challenged in federal court by civil rights and
immigration advocacy groups. What do you think their chances are?
Speaker 3 (19:08):
So, 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
(19:28):
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. It's detension is meant
for criminal proceedings. And even most criminals when they're going
through criminal proceedings have bond that they can either apply
(19:49):
for or not. Now what's complicated here is the law
was that Again, like I said, everybody used to be
able to apply for bond, with two exception 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 US, meaning
(20:13):
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 across the border by letting you out.
We keep you in detention until we decide if you
have a case to remain or if you don't have
(20:35):
a case to remain, you get booted out. But the
question is what happens with people who crossed the border illegally,
but we didn't realize it until five years later, ten
years later, et cetera. And so historically those people were
allowed to get bond hearings because the idea was they
were already here, they were circulating.
Speaker 4 (20:56):
In the United States.
Speaker 3 (20:58):
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 where the proceedings are pending, there's no bond that
(21:19):
applies whether it took us one minute or whether it
took us five years to cut you. So that's the
change in the interpretation. So this doesn't apply to someone
who came legally and overstated 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
(21:41):
more I think of a constitutional due process argument rather
than a statutory argument, because the statute, interestingly, I think
it's fifty to fifty. But what happened was it was
always interpreted in the way that you get bond because
people were worried.
Speaker 4 (22:01):
About the fact that how could someone.
Speaker 3 (22:02):
Have been here five years or ten years and circulating
amongst the United States, not committing any crimes, etc. And
then for a civil proceeding you would deny them bond,
when if this were a criminal proceeding, they would be
eligible for bond. What would be the constitutional authority to
keep someone mandatorily detained like that, And so they always
(22:26):
interpreted the statute in a cautious manner to say, no, no, no,
give those people a bond hearing, and if they are
dangerous or if some other reason exist, been fine, you
can deny them bond. But if they're not dangerous, you
have to let them out because they had already been
out for such a long time. So ultimately the courts
are going to have to struggle with not what the
(22:46):
statute means, because the statute actually probably supports the argument
that if someone processes the border illegally, whenever they're found,
you have to detain them, but really the constitutionality of
that concept, because the issue is that someone's really been
here for that long. Is it constitutional to have them
(23:09):
detained with no bonds for a civil proceeding when the
constitution ab whores any kind of civil detention period, And
so I think that's going to be the main question here.
Speaker 2 (23:21):
Always a lot of questions and not that many clear
answers in our immigration law system. Thanks so much, Leon.
That's Leon Fresco of Holland and Knight, And that's it
for this edition. Of the Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
(23:42):
and at www dot bloomberg dot com, slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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