President Trump issued a Proclamation yesterday that temporarily bars entry from abroad of employees on H, L, and J temporary visas until the end of this year. The Proclamation also extends the duration of Presidential Proclamation 10014, which bars the entry of most new immigrants from abroad, until the end of this year. The Proclamation directs the Departments of Labor and Homeland Security to commence rulemaking to eliminate certain work permit programs and make access to EB-2 and EB-3 immigrant visas more difficult.
A panel of partners from Klasko Immigration Law Partners will offer a webinar for employers on Wednesday, June 24 at 1:00 pm Eastern. To register for this webinar, please click here.
The details of the new order, which will take effect at 12:00 a.m. on June 24, 2020 and will continue through December 31, 2020 (with a direction that Labor and Homeland Security “reassess” it at the end of July and every 60-days thereafter), are as follows:
Action 1: Suspension of Entry of H-1B, H-2B, Some J-1, and L‑1A/B Nonimmigrants until the end of 2020
Repeatedly, President Trump has relied on a very specific statute that grants the Presidency authority to bar the “entry” of foreign nationals into the U.S., Section 212(f) of the Immigration and Nationality Act. Section 212(f) allows the President to “suspend the entry” of any noncitizen, or any group of noncitizens, whose entry is stated to be “detrimental to the interests of the United States.” In this statute, “entry” specifically means crossing a U.S. border, whether on foot, by car, by sea or by air.
In this regard, the Proclamation bars the entry of the following classes of nonimmigrants into the U.S., provided they are currently outside the United States and do not already have an unexpired visa to reenter:
- H-1B, H-2B and H-4 nonimmigrants;
- J nonimmigrants seeking to enter as an intern, trainee, teacher, camp counselor, au pair, or summer work traveler, and any J-2 accompanying or following to join such person currently outside the U.S.; and
- L “International Executive or Managerial” and “Specialized Knowledge” nonimmigrants currently outside the U.S., along with L-2 spouses and children.
The Proclamation does not apply to J-1 Students (high school/college age); Professors/Researchers; Short-Term Scholars; or Medical Residents and Fellows.
The following are exempted from the new travel ban:
- Nonimmigrants who are inside of the U.S. in valid H-1B, H-2B, H-4, J-1 or L-1 on June 22, 2020, whether they have an unexpired visa stamp or not (though such nonimmigrants should consult with a lawyer before any international travel to ensure they can return to the United States);
- Lawful permanent residents;
- A person who is the spouse or child of a U.S. citizen;
- Nonimmigrants entering as agricultural laborers (i.e., H-2A workers);
- Nonimmigrants who seek to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain;
- All other nonimmigrant classes not mentioned in the above list; and
- Any individual whose entry would be in the national interest of the U.S., as determined by the Secretary of State or the Secretary of Homeland Security
The national interest exemption includes, but is not necessarily limited to, individuals who are: (1) critical to the defense, law enforcement, diplomacy, or national security of the U.S.; (2) involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; (3) involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or (4) are necessary to facilitate the immediate and continued economic recovery of the United States.
If a nonimmigrant is not exempted, the practical effects of this new entry ban are as follows:
- Employers will not be able to bring workers who are abroad if they do not already have a currently valid nonimmigrant visa, even if a visa petition is approved on their behalf;
- Processes inside the U.S. will continue, allowing employees to keep working, extending status, and making progress toward green cards, provided they do not leave the U.S.; and
- Employees in one of these categories appear to be able to travel abroad and return if they require a new nonimmigrant visa, but it is not yet clear how long it will take to obtain such visas or whether such employees will, in fact, be able to return; and
- Employees in one of these categories appear to be able to travel abroad and return if they currently have a valid nonimmigrant visa.
Action 2: Extension of Existing Travel Ban for Immigrants
The new Proclamation extends an existing travel ban from April 20, 2020 that suspends the entry of new immigrants into the U.S. (i.e. entering with an immigrant visa) until December 31, 2020. The continued ban will affect foreign nationals who meet the following criteria:
- Are outside the U.S.;
- Do not have an immigrant visa that was valid on April 23, 2020; and
- Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document).
The following classes of individuals are and will continue to be exempt from this travel ban:
- Lawful Permanent Residents (current green card holders);
- Foreign Nationals entering the U.S. on an Immigrant Visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak; and any spouse and unmarried children under 21 years old of any such foreign national who are accompanying or following to join;
- EB-5 investors;
- Spouses of U.S. Citizens;
- Foreign nationals who are under 21 years old and are children of the U.S. citizens;
- Foreign nationals whose presence in the U.S. is in the national interest;
- Foreign nationals whose entry furthers U.S. law enforcement objectives; and
- Asylum seekers and certain Special Immigrant entrants such as Iraqi and Afghani nationals who have assisted the U.S. military.
- A new exception applies to immigrants entering as a derivative or dependent “child,” who are allowed to immigrate if they would otherwise “age out” of their visa category before December 31, 2020.
The new Proclamation also does not change the process of obtaining permanent residence from within the United States through adjustment of status.
The order does nothing to suspend other COVID-19-related immigration restrictions and slowdowns currently on the books, which currently include:
- Closure of U.S. Embassies and Consulates abroad;
- The Travel Bans for individuals who have been in Mainland China, Iran, most European countries, and the UK; and
- Closures of the Northern and Southern U.S. Borders.
Action 3: Directing New Regulations
The President can change immigration policy relatively quickly by issuing proclamations, but only if the proclamations relate to the “entry” of foreign nationals. To put other changes into effect, the President must undergo a more formal process called “notice and comment rulemaking,” which is slower and more bureaucratic. For this reason, President Trump has directed agencies to accelerate the rulemaking process to pass the following rules:
- Heightening the level of scrutiny for EB-2 and EB-3 green card processes, and more particularly, immigrant visa petitions that require filing a labor certification or “PERM” application;
- Heightening the level of scrutiny of the H-1B nonimmigrant program, which may include limiting an employer’s ability to place H-1B employees at third-party worksites or file H-1B petitions in advance of knowing exactly when and where the H-1B employee will be working;
- Proposing regulations to change the annual allocation of new H-1B visas from a random selection to one based on the level of wages offered; and
- Eliminating work authorization for several categories of individuals who have final orders of removal, are inadmissible or deportable from the U.S, or who have been arrested for, charged with, or convicted of a criminal offense in the U.S.
Other proposed rules, which were not explicitly listed in the order as the subject of any immediate action, but are currently in process, include:
- Eliminating work permit privileges for the spouses of H-1B nonimmigrants (the “H-4 EAD”);
- Eliminating “Duration of Status” for F, M, J, and I nonimmigrants by providing a defined period of stay.
Because rulemaking generally requires notice to the public and the opportunity for the public to comment in reply, employers are able to weigh in on the practical effect of any of these rule changes before they go into effect. Even if the President undertakes rulemaking, however, it is unclear whether he has the statutory authority to pass several of the above-mentioned proposals by rule.
There remains at least some possibility that the President will direct the agencies to use an exception to “notice and comment” rulemaking, called the “good cause” exception, which would make any changes go into effect upon publication. Since such “interim” rules do not require public participation, they could take effect as early as late July. It is not yet clear whether the Administration will want to invoke the “good cause” exception, as it would make the interim rules susceptible to legal challenge. It could even cause a federal judge to issue a national injunction which would halt the rules from becoming effective.
What can we do now?
The President justified his new travel ban for on the basis that nonimmigrants are detrimental to the U.S. economy. The data on unemployment in the occupations in which H-1B workers, STEM OPT F-1 holders, L-1 nonimmigrants and H-2B essential workers are employed simply does not support the President’s position. In this regard, we strongly encourage you to consider joining as a plaintiff in litigation to challenge these restrictions in court.