Call To Action: Temporary Ban On Entry Of Nonimmigrant Visa Workers May Be Coming

Constangy, Brooks, Smith & Prophete, LLP

The Trump Administration is reportedly contemplating a proclamation that will significantly affect a number of temporary work permit programs. Although we cannot predict with certainty what these restrictions will be or their duration, it appears that employers can expect modifications to the following temporary visa programs:

  • H-1B Program (specialty occupation workers)

  • H-2B Program (non-agricultural workers only)

  • L-1 (intracompany manager/specialized knowledge workers for multi-national companies)

  • J-1 Exchange Visitor Program affecting “summer work travel” programs

  • Optional Practical Training (used by foreign students who graduate from U.S. institutions)

The proclamation is likely to announce a temporary ban on nonimmigrant worker entries but no other policy changes. Those will presumably be dealt with later by way of notice-and-comment rulemaking. In addition, it is expected that certain industries will be exempted from the restrictions, such as health care workers directly involved in the response to the COVID-19 pandemic.

On April 22, the President issued a proclamation which, among other things, required that within 30 days the Secretaries of Labor and Homeland Security, in consultation with the Secretary of State, review nonimmigrant programs and provide the administration with recommendations on measures appropriate to stimulate the economy and ensure the prioritization of U.S. workers.

The U.S. Chamber of Commerce, multiple business stakeholder organizations, and members of Congress have provided their recommendations to the Administration, arguing that the temporary work visa programs are a key component of the economic recovery. The Chamber of Commerce has provided data indicating that the unemployment rate for workers employed in computer occupations -- where U.S. workers have historically been supplemented with H-1B workers -- is actually lower now than it was in January. Various technology employers have also warned that a categorical ban on temporary visa programs may substantially affect these employers’ ability to recover from losses that occurred during the pandemic.

The situation is rapidly evolving, as lawmakers and many businesses, including tech companies, seasonal employers, colleges and universities, and research institutions are calling on the Administration to postpone its plan as the nation begins to recover from the effects of the COVID-19 pandemic. It is crucial for many employers to have access to the best talent, both domestically and globally.

Call to action

Employers who rely on foreign workers, business groups, and executives should make their views known to key White House officials, agency heads, and lawmakers. Government officials need to hear the following:

  • Data show that unemployment rates have remained low in industries that employ nonimmigrant visa holders.

  • A more comprehensive ban on nonimmigrant workers is inconsistent with the most recent unemployment statistics, which were very encouraging, as well as the President’s messaging that our economic recovery has begun and is more successful than originally anticipated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Constangy, Brooks, Smith & Prophete, LLP

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