President Bans Entry of Temporary Workers to U.S.

Gibney Anthony & Flaherty, LLP
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On June 22, 2020, President Trump issued a Proclamation suspending entry to the U.S. of foreign nationals in certain nonimmigrant (temporary) visa classifications. The entry ban takes effect June 24, 2020 at 12:01 a.m. Eastern Daylight Time.

WHO IS IMPACTED BY THE BAN

Individuals in the following visa categories who are outside of the U.S. on June 24, 2020, and who do not hold a valid nonimmigrant visa or travel document (transportation letter, boarding foil, or advance parole document) are banned from entering the U.S.:

  • H-1B professional workers;
  • H-2B temporary non-agricultural workers;
  • J-1 exchange visitors participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program;
  • L-1 intracompany transferees;
  • Dependent spouses and children of these visa holders.

WHO IS EXEMPT FROM THE BAN

The ban does not apply to

  • any lawful permanent resident of the United States;
  • any foreign national who is the spouse or child of a United States citizen;
  • any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain;
  • any foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Consular officers will have the discretion to determine if a foreign national falls within one of the exemptions outlined above.

AVAILABILTY OF WAIVERS

The Secretaries of State, Labor and Homeland Security are authorized to define categories of exempted foreign nationals whose work is in the national interest and establish waiver standards. This may include foreign nationals whose work

  • is deemed critical to defense, law enforcement, diplomacy or the national security of the U.S.;
  • involves providing medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • involves providing medical research at U.S. facilities aimed at combatting COVID-19;
  • is necessary to facilitate the immediate and continued economic recovery of the U.S.

The administration has offered few waivers in connection with its other bans, and we expect waivers will be very limited and difficult to secure.

DURATION OF BAN

The entry ban will remain in effect until December 31, 2020, and may be extended. The Secretary of Homeland Security is charged with consulting with the Secretaries of State and Labor to recommend modifications as deemed appropriate.

ADDITIONAL RESTRICTIONS AIMED AT FOREIGN WORKERS IN THE U.S.

The proclamation directs the Department of Homeland Security to consider other unspecified action addressing the H-1B program and employment-based green card sponsorship for professional and skilled workers, to ensure that U.S. workers are not disadvantaged by foreign nationals already in the U.S. We expect publication of regulations that impact foreign workers in the U.S. who are beneficiaries of these programs. The proclamation also directs the Department of Labor to undertake investigations to ensure employers hiring H-1B workers comply with all applicable rules and regulations.

CONTINUATION OF BAN BLOCKING ADMISSION OF IMMIGRANTS

The proclamation also continues the President’s April 2020 Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak through December 31, 2020. The April proclamation suspends the entry of select classes of immigrants currently outside the U.S. seeking to enter the U.S. as permanent residents with a new immigrant visa. Additional information about the ban on the admission of immigrants is available here.

IMPACT ON EMPLOYERS

  • U.S. companies, hospitals, universities and small businesses that seek to employ high-skilled and temporary workers, as well as multinational corporations that seek to leverage the expertise of employees from overseas affiliate offices, are now severely restricted in their ability to do so. Having already invested resources in recruiting and sponsoring foreign nationals for work visas, many employers will now find that, despite having approved petitions, sponsored individuals may be unable to secure visas and enter the United States, further disrupting workforce planning and business operations.
  • U.S. employers that sponsor H-1B visas should expect increased onsite investigations by the Department of Labor and Department of Homeland Security.
  • U.S. employers should expect regulatory proposals that further restrict or eliminate other work visas, impacting foreign national workers already in the U.S. These could include additional restrictive measures associated with qualifying an individual for an H-1B or L-1 visa, elimination of the Optional Practical Training employment program for foreign students, elimination of H-4 work authorization for the spouses of certain H-1B workers, as well as increased filing fees, among other measures.

While the proclamation’s stated rationale is to protect U.S. workers from the economic downturn stemming from the coronavirus pandemic, no empirical evidence was offered demonstrating that employing individuals in any of these visas classifications takes jobs from U.S. workers or harms the economy.  In the weeks leading up the ban, members of Congress, employers, business groups, and universities made contrary arguments, voicing their strong opposition and calling the proposal detrimental to the economy. Legal challenges to the ban are expected.

Gibney will continue to monitor developments and provide updates as they become available. 

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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