Trump Administration Issues Executive Order Barring Issuance of New Foreign Work Visas

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On Monday, President Trump signed a Proclamation suspending the issuance of new employment-based visas in an effort to limit the entry of immigrants into the country. The ban restricts the issuance of certain H-1B, H-2B, J trainee, and L intracompany visas.

The Proclamation suspends entry into the US by certain H-1B, H-2B, J and L visa-holders, as well as those family members seeking to join them in the States.  The suspension and limitation of entry, however, is limited to those applicants who:

  • Are outside of the US as of June 24, 2020, the effective date of the Proclamation;
  • Do not already have a non-immigrant visa valid on the effective date; and
  • Do not have an official travel document other than a visa, like a transportation letter, boarding foil, or advance parole.

So, the good news is that if you are an international currently in the US, you should be fine, at least for now.  The Proclamation’s suspension and limitation of entry into the US also exempts certain applicants, including:

  • Permanent residents of the US;
  • Spouses and children of US citizens;
  • H-2B visa-holders entering the US to work in temporary labor positions for the US food supply chain; and,
  • Those entering the US that would be deemed to be in the country’s national interest.

Much uncertainty remains regarding the specific exceptions listed above, as well as how the Proclamation would ultimately be interpreted and applied by agents at the border, as well as by Consular officers when US Consulates start to resume normal operations.  For instance, the Proclamation fails to address the impact on Canadian citizens who are exempt from visa stamping requirements.  As written, it appears that the Proclamation would not impact Canadian travel, although that remains to be seen. The Proclamation also fails to address beneficiaries of Blanket L petitions.

Also, there is no precise definition of who would be deemed to be in the country’s national interest.  Rather, the Proclamation directs the Departments of State, Labor and Homeland Security to establish relevant standards.  The Proclamation did provide some guidance that this category would include those who are:

  • Critical to the defense, law enforcement, diplomacy or national security of the US;
  • Are involved in providing medical care to currently hospitalized COVID-19 patients;
  • Are involved in COVID-19 research; or,
  • Are necessary to facilitate the continued economic recovery of the US.

The ultimate standards will have a significant impact on the types of individuals who will be granted visa stamps and allowed entry into the US.  For instance, if the standard of admission of healthcare practitioners is limited to those treating patients in the hospital, then many workers to be employed in clinics or other preventive care settings may be kept out of the US even though their presence is sorely needed.  Also, the Proclamation fails to address an unintended consequence on our healthcare system: COVID-19 has resulted in many procedures being delayed as “non-essential” in anticipation of a COVID surge that, in many areas, thankfully did not materialize.  Many other patients avoided or delayed treatment for the past few months out of fear of exposure. The result now is a tremendous backlog of care, with patients often arriving much sicker than they would have prior to the pandemic. Limiting the entry of healthcare workers at this time could have a dramatically negative ripple effect on the US health care system, which relies significantly on international talent, particularly in federally designated shortage areas.

While it is laudable of course to seek to protect US jobs, particularly given the sudden and unexpected spike in unemployment rates due to the pandemic, the ban on entry of H-1B workers in the IT sector may have a particularly negative impact on US businesses.  The demand for IT workers during the pandemic has increased, due in large part to the switch to remote work where possible.  While the overall US unemployment rate has surged to north of 13%, the unemployment rate in the IT sector has actually decreased from 3% pre-pandemic to 2.5% currently, according to reports from the National Foundation for American Policy.

The Proclamation also asks the Department of Labor to consider new prevailing wage regulations that would likely raise the floor wage for visa and permanent residency sponsorship.  The Trump administration is also calling for large-scale changes to the H-1B visa program outside of this temporary ban to further decrease the flow of international talent.

Further adding to the uncertainty in the business community, the Proclamation states that the Departments of Homeland Security, State and Labor must recommend any modifications to this process within 30 days of the effective date, and then continue to do so on a 60-day basis until the end of the year.

This Proclamation primarily targets those who “won” a spot in this year’s H-1B lottery with applicants residing outside the US.  Companies who were awarded H-1B visa slots in the most recent lottery are left with the question of what to do with the offers they have already extended to foreign workers. Many in the business community, including the US Chamber of Commerce, have argued against these types of restrictions, contending that decreasing the flow of international talent could stifle U.S. job growth. In the meantime, universities, technology companies, health systems and others who utilize H-1B, H-2B, J trainee, and L intracompany visas should continually review their options with counsel and urge lawmakers to institute further exemptions for positions they’re unable to fill from the U.S. workforce.

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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