On May 26, 2020, we wrote about the new non-immigrant visa restrictions that were likely to be enacted in a Presidential Proclamation. It appears the Administration will most likely make an announcement in the next few days regarding these restrictions on foreign nationals entering the U.S. for work. While there may be exceptions for certain occupations (it is hard to imagine they will ban foreign medical graduates that are battling on the front lines in rural and underserved clinics) it is possible this ban could have a devastating impact on the U.S. recovery effort, especially in the high tech sector where unemployment rates remine extremely low. The U.S. may well be shooting itself in the foot as the President issues yet another immigration ban.
Given the possibility for additional travel restrictions based on the yet-to-be published Proclamation, it may be advisable for foreign national employees who hold valid nonimmigrant visas to return to the U.S.
While we do not know the contents of this proposed new proclamation-we are sufficiently worried to advise that the prudent approach is to return to the U.S. as soon as possible if on a nonimmigrant F-1 OPT, H-1B, H-2B, L-1 or J-1 visa. While any order may be enjoined, the President has broad powers under Section 212(f) of the Immigration Act to bar entry to certain non-immigrants outside the U.S.
What We Have Heard
- The proclamation would temporarily suspend entry of certain non-immigrant workers for a period that might be as long as 180 days. This proclamation would likely impact high-skilled workers outside the U.S. seeking to enter on H-1B and L-1 company transfers, as well as H-2B temporary workers as well as certain J-1 exchange visitor.
- The proclamation will likely include a temporary ban on non-immigrant worker entries and will be followed by devastating regulatory proposals designed to stop specialized foreign nationals or their spouses from working in the U.S.
- The proclamation may be issued in the next 1-2 weeks.
- Additionally, the Demonstration is planning several rulemakings, that could impact H-1B, OPT, and H-4 work visas. While such changes ordinarily require notice and comment, it is rumored that the Administration will seek a good cause exception to Administrative Procedures Act, which if successful would speed up the process. The decision to rescind work authorization for persons mainly in computer-related jobs or engineering jobs, seems it could adversely impact our recovery.
Areas Likely to Be Impacted
- Proclamation barring entry to the US for L-1, H-1B, H-2B and J-1 for a temporary period under INA 212(f) and 215(a).
If this happens these visa holders and their families need to return to the U.S. NOW.
- There are likely to be significant exceptions for Covid-19 related visa bearers.
- For high-skilled workers, this will probably include health care professionals.
- For H-2Bs exceptions may include food-supply jobs.
- There might be an exception when an employer can document recent competitive recruitment efforts for the job.
- This will likely impact new FY 2021 “cap-subject” H-1B beneficiaries who would enter October 1.
- For L-1 company transfer, it unclear if L-1A managers and executives will be barred together with L-1B specialized knowledge employees.
- It is not clear which of the 13 sub-categories of J-1 participants will be barred. It seems unlikely J-1 foreign medical grads receiving graduate medical education (residency training) in the US, researchers and professors, and K-12 teachers would be banned. The categories that have been mentioned in the past include summer work and travel and camp counselor J-1 visa holders.
- A regulation limiting post-completion OPT and STEM OPT to an initial 12-month OPT program by rescinding the STEM OPT regulation, is possible. There is talk that to be eligible for OPT, the student must graduate near the top of their class.
- Possible changes to the H-1B requirements:
- A new filing fee of $20,000 per case including for extensions.
- A new “Strengthening H-1B” regulation may be published soon. This includes redefining the employer-employee relationship and redefining specialty occupation.
- Another concept would require employers to hire at level 1 wages but only for a 2-year increment, and thereafter the extension any proffered wage must be level 2 wage, for example.
- Another huge impact would be publication of a regulation rescinding the H-4 spousal work authorization rules. This is
- Finally, there is speculation that there will be a regulation eliminating work authorization for asylum seekers, asylees, those with TPS, and refugees. Persons who enter the US as refugees and those that are granted asylum, are required to provided with work authorization based on the 1967 Geneva Protocol. For asylum and TPS recipients it makes no sense to say you can stay but not work leaving them few options to support themselves. Seems unwise to say you can stay here for a period of time but cannot work to support yourself.
Obviously, this news will strike many of you as simply fanciful talk. The reality is that, given the current political climate, and the polls running strongly in favor of Biden, many of the anti-immigrant appointees believe that their time is limited to make substantial negative changes to the legal immigration system.
Please subscribe to our newsletter as we will provide regular updates on this critical new problem.