US Visa Alert! Possible Expansion of Presidential Proclamation.

US Visa Alert! Possible Expansion of Presidential Proclamation.

If any US employees currently hold H-1B, L-1, H-2B, or J-1 US visas it is advisable that they should return immediately to the US due to a possible announcement from the Trump administration that will bar entry to these visa holders. If a foreign employee is in another visa status and is in the process of applying for the H-1B, L-1, H-2B, or J-1 US visa categories they should remain in the US, and if it is permissible, apply to change their status within the US.

 

Since April 22, 2020, the announcement of Presidential Proclamation 10014, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” (85 FR 23441, 4/27/20), we have been awaiting another announcement from the Trump administration. That proclamation threatened not only the extension of the existing proclamation within 60 days but also the expansion to nonimmigrant work visas. Our firm has been working hard to understand what may be included in any possible expansion to the April 22nd proclamation. Here’s what we know so far, but this is all still in flux and is subject to change until the Proclamation is issued. Janice Flynn & Associates will continue to monitor and provide updates as appropriate.

 

Timing

  • The President may be deciding on the scope and timing of the proclamation to be expected as early as June 11, 2020, but this did not happen.
  • The proclamation could be issued as soon as June 15, 2020, and will likely be issued by the end of June.
  • The proclamation could be in effect for as long as 90 to 180 days.

 

Possible Substance

  • Proclamation barring entry to the U.S. for H-1B, H-2B, L-1, and J-1 US visa holders for a temporary period under authority given to the President under sections 212(f) and 215(a) of the Immigration & Nationality Act.
    • The intent is to impact FY 2021 H-1B cap-subject cases with October 1, 2020, start dates.
    • No consensus on what will happen for L-1s, but there could be an exemption for the L-1A visa category (intracompany transferee executives and managers).
    • Not clear which of the J-1 subcategories would be impacted, but likely to impact the Summer Work Travel (SWT) program, camp counselor, intern, and trainee programs.
    • The proclamation will announce a temporary ban on the entry of nonimmigrant workers, but will likely NOT announce or describe other substantive policy changes that are expected to follow in regulatory proposals.

 

  • The proclamation will include exceptions, such as:
    • COVID-19 related exemptions, such as for health care workers
    • Food supply related exemptions
    • For U.S. employers who conduct additional recruitment efforts.

 

Possible Subsequent Regulations

  • Potential rulemakings in the works as early as July on H-1B, OPT, and H-4. It is unclear if these will go through the notice and comment process.
  • Rescind the STEM OPT regulation and add requirements to the 12-month Optional Practical Training (OPT) program.
  • Issue the Strengthening the H-1B Nonimmigrant Visa Classification Program regulation
    • Focus on employer-employee relations, specialty occupation definition, and wage levels.
    • Add $20,000 (or higher) fee.

 

  • Rescind the H-4 Employment Authorization Rule for spouses of H-1B visa holders.
  • Possible rescission of employment authorization for asylees, refugees, and temporary protected status (TPS) holders.

 

Next Steps

At this time, business groups and executives are focused on outreach to key White House officials, agency leaders, and Republican lawmakers to underscore the harm that an expansion of the proclamation, would have on our economic recovery. As you may hold key positions within US businesses or you may know of those who must employ foreign workers in the US, I urge you to contact your local Congresspersons to express why this order and possible change to US immigration rules will economically harm your business and could likely lead to US worker job losses.

Janice Flynn & Associates lawyers belong to the American Immigration Lawyers Association (AILA) which recognizes that many of the proposals seem to be legally questionable and AILA is working with partners to consider any possible litigation.

If you have further questions, please contact Janice Flynn, our Principal Lawyer, at janice@janiceflynnlaw.com.