On June 22, 2020, President Trump issued a “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” that will suspend entry to the United States for H-1B, H-2B, J and L nonimmigrant visa holders. This proclamation follows the Administration’s proclamation of April 22, 2020 that suspended travel on immigrant visas, and extends similar restrictions to holders of non-immigrant visas, who had been excluded from the first proclamation. Further, the White House announced plans to enact more permanent changes to the H-1B visa program and to asylum regulations in the near future.

A. Non-Immigrant Visa Suspension

The June 22 proclamation applies to H-1B (highly skilled workers), H-2B (seasonal, non-agricultural workers), L (intracompany transfers for managers and those with specialized knowledge) and certain J (exchange program) visa holders. H-1B and L visa holders, in particular, are prominent in the technology and healthcare sectors. The proclamation takes effect June 24, 2020 and suspends the entry of these nonimmigrant visa holders, along with their spouses and children, into the United States through December 31, 2020 if:

• They were outside of the United States as of June 24, 2020;
• They do not have a valid nonimmigrant visa that was effective as of June 24, 2020; and
• They do not have an official travel document other than a visa (such as a transportation letter to travel to the United States, an appropriate boarding foil, or an advance parole document) that was valid on June 24, 2020 or issued on any date thereafter that permits the holder travel to the United States and to seek entry or admission.

Thus, the proclamation does not apply to nonimmigrant visa holders presently in the United States, nor does it apply to workers outside the United States who already hold a valid visa and travel document. Those individuals and their spouses and children may remain in, or travel to, the United States pursuant to the existing terms of their individual visas. Rather, the suspension applies prospectively, and will prevent those whose nonimmigrant visas take effect after June 24, 2020 from traveling to the United States. The suspension also does not apply to lawful permanent residents; spouses and children of U.S. citizens; workers who will “provide temporary labor services essential to the United States food supply chain,” such as migrant farm workers; and those whose entry “would be in the national interest,” as determined by the Department of State or Department of Homeland Security. The proclamation does not specify how such determinations would be made. 

According to the White House, the purpose of the suspension is to “put American workers first during our ongoing coronavirus recovery.” The proclamation states that between February and April 2020, more than 20 million United States workers lost their jobs in industries where employers are currently requesting H-1B and L visas to fill positions, and more than 17 million workers lost jobs in which employers are seeking to fill positions tied to H-2B visas. The White House cited high youth unemployment figures in support of its decision to suspend entry for J visa holders.

B. Changes to H-1B Program and Asylum

The June 22 proclamation further directs the Secretaries of Labor and Homeland Security to promulgate regulatory changes to the H-1B visa program. The White House has not announced the specifics of these changes, but indicated that the H-1B program will now prioritize high-wage workers in an attempt to prevent mid-level American employees from losing jobs to guest workers. The new regulations will likely look to supplant the existing H-1B lottery process with a selection system that prioritizes applicants who will be paid the highest wages. It is unclear when these changes will go into effect, although it is unlikely that they will have any practical impact until the suspension of new H-1B travel is lifted.

Further, the White House announced that it has “finalized regulations to eliminate the incentive to file an asylum application for the primary purpose of obtaining an Employment Authorization Document.” It is unclear which incentives in the asylum process the new regulations will seek to change, what form the new regulations will take, and when they will go into effect.