According to media and other sources, the Trump Administration will likely issue a Presidential Proclamation instituting additional immigration restrictions by the end of this month. The Proclamation is likely to extend the April 22, 2020, Presidential Proclamation, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended immigrant visa processing for some applicants for permanent residency for 60 days. The new Proclamation is also expected to impose temporary restrictions on the entry into the United States of H-1B, J-1, L-1 and H-2B visa holders for 120 to 180 days. The restriction on the entry of H-1B visa holders is intended to impact FY2021 H-1B cap-subject cases with October 1, 2020, as the start date. There is no consensus on what will happen for L-1 visa holders, but there could be an exemption for the L-1A visa category (intracompany transferee executives and managers). At this point, however, the timing, content and scope of any Proclamation is uncertain. Given this uncertainty, we recommend that employers strongly caution against any international travel for their employees in nonimmigrant visa statuses. Affected employees who travel abroad may not be able to return for an uncertain period of time. Foreign national employees who have a valid visa should return to the United States as soon as possible.
The new Proclamation will likely be followed by several regulatory proposals to further restrict employment-based immigration programs. Such proposals may include (1) restrictions on businesses employing foreign students in F-1 status through Optional Practical Training (OPT); (2) the rescission of the work authorization for certain spouses of H-1B workers (also known as the “H-4 EAD”); (3) significant increases in H-1B filing fees; and (4) expanding “joint-employment” liability to companies that contract with service providers who employ H-1B workers. Again, the actual content of any such proposals remains to be seen, so their potential impact is uncertain.
These restrictions, if implemented, will negatively impact the ability of American employers to hire and retain foreign nationals to meet their workforce needs. Employers should work with their immigration counsel to stay up-to-date on the latest news and to mitigate any negative impact these restrictions may have, to the extent possible. Some proactive measures may include encouraging eligible employees in F-1 or H-4 status to apply for OPT/STEM OPT or renew their H-4 EAD at the earliest permissible time; considering using premium processing for eligible I-129 and I-140 petitions; and strategizing about and planning for alternative work authorization options for potentially affected employees.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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