“All in all it’s just another brick in the wall” – Pink Floyd

“You never want a serious crisis to go to waste” – Rahm Emanuel

President Donald Trump’s campaign promise to build a wall along the United States’ southern border with Mexico has gone largely unfulfilled. But while President Trump has not accomplished his goals in the form of a physical barrier to stop or limit immigration to the United States, the COVID-19 crisis has given his administration the opportunity to impose several significant restrictions on legal immigration that impact a wide variety of foreign students, workers and families.

The Latest

On July 6, 2020, U.S. Immigration and Customs Enforcement (“ICE”), which manages the Student and Exchange Visitor Program for foreign students in F-1 and M-1 visa status, modified its COVID-19-related guidance for students and schools to prevent foreign students from remaining in the United States if all course instruction would be online for fall 2020. Students attending programs holding classes in person or through a mix of in-person and online instruction are permitted to continue with their studies in the United States. The administration has publicly acknowledged that this policy change is intended to encourage schools to reopen for in-person classes.

Travel Bans and Consulate Closures

The restriction on students and schools is only the most recent of several significant changes to U.S. immigration policy implemented during the COVID-19 crisis. On Jan. 31, Trump issued a presidential proclamation barring entry to the United States for any individual physically present in China within the 14 days immediately prior to seeking entry to the United States. This has stranded in China many workers, students and family members who do not have the opportunity or the means to quarantine in a third country before completing return travel to the United States.

Similar “travel bans” have since been announced for Iran, the European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City), the United Kingdom (England, Scotland, Wales, Northern Ireland), the Republic of Ireland, and Brazil. With limited exceptions, foreign nationals who have been in any of those countries within 14 days of seeking to enter the United States will be denied entry. The administration has also closed all ports of entry on the Mexico and Canada borders to all nonessential travel, though air travel is permitted.

In March, the State Department’s U.S. consulates, which issue all categories of immigrant and nonimmigrant visas worldwide, closed for routine operations. This means that without a humanitarian or COVID-19-related justification for an emergency visa appointment, workers, students, and families from all countries and in all visa categories are unable to procure new immigrant or nonimmigrant visas for travel to the United States. Only those already possessing valid visas may travel.

Restrictions on Foreign National Workers

On April 22, the Trump administration issued a presidential proclamation suspending the entry of certain individuals seeking admission to the United States as immigrants, better known as those seeking “green cards” or permanent residency. Among other things, this proclamation prevents those seeking green cards through most forms of employment and who are currently abroad from finalizing their cases and receiving the immigrant visas that would allow them to enter the United States, with limited exceptions. This proclamation does not impact individuals currently in the United States.

On June 22 , President Trump took aggressive action impacting a wider group of foreign national workers. In a new presidential proclamation, President Trump suspended the entry of certain temporary workers who are outside the United States and not in possession of a valid visa from seeking admission to the United States through Dec. 31. The June 22 proclamation applies to H-1B (professionals), H-2B (seasonal or peak-load workers), L (intracompany transferees) and J-1 (cultural exchange visitors) visas. It does not impact other work visas, which include the E, H-1B1, H-3, O, P or TN categories, but it does apply to family members of affected workers. The administration claims this action will protect more than 500,000 jobs for U.S. workers.

On June 29, the administration amended the June 22 proclamation to close a perceived loophole that would have exempted individuals with any type of valid visa (such as a visitor visa) to secure and use an H-1B, H-2B, L-1 or J-1 visa. The proclamation now exempts only those H-1B, H-2B, L-1 or J-1 visa holders who possessed a valid visa in the same category as of the effective date of the proclamation. Other ambiguities remain and will require further guidance from the administration.

Takeaways

Advocates for U.S. immigration have been lamenting what appears to be an “invisible wall” constructed by the Trump administration. Throughout the course of Trump’s first term, his administration appears to have successfully restricted legal immigration through policy changes and adjudications, rather than through legislation or rule-making. Even before the COVID-19 pandemic, processing times had slowed and denial rates were up across the board.

Now with recent restrictions in place, the “Culture of No” at the Department of Homeland Security has taken on new life. Key takeaways for employers and their foreign national workers include:

• H-1B workers who benefit from petitions filed between April 1 and June 30, 2020 for job opportunities that begin on October 1 must delay their arrivals until at least January 1, 2021.
• L-1 workers – executives, managers and specialized knowledge personnel employed by foreign affiliates of U.S. companies – cannot secure new nonimmigrant work visas to fill important roles in the United States.
• J-1 cultural exchange visitors – trainees and interns who work temporarily in the United States for 12-18 months – must cancel their training and internship opportunities.
• Family members of affected workers who were abroad without valid travel visas on the effective date of the June 22 proclamation cannot return to the United States to rejoin their spouses or parents until January 1, 2021.
• Foreign students, who make up a critical component of the talent pool for U.S. employers, must in the next several weeks determine whether their school will offer in-person classes and, if not, whether they will transfer to a school that will offer in-person classes or leave the United States. As just one example, Harvard University will be completely online in fall 2020.

And the administration may not be done yet. Various proposals are pending or rumored to restrict work permits for spouses of H-1B visa holders (known as H-4 EADs) and to revamp the green card labor certification process that allows U.S. companies to transition temporary workers to permanent residents.

Most alarmingly, the U.S. Citizenship and Immigration Services (USCIS) agency that processes visas, green cards and naturalization for U.S. citizens is facing a $1.2 billion shortfall due to a 50% drop in filings during the COVID-19 pandemic, but also due to a deliberate shift in resources from services provided to the public to enforcement measures prioritized by this administration. Without congressional and White House action, USCIS may furlough 13,400 of its personnel (nearly 70% of its workforce) in August.

BakerHostetler’s Immigration team will continue to monitor these developments and provide updates as needed.