President Trump issued a proclamation on April 22, 2020

restricting the ability of certain foreign nationals from using

immigrant visas (IVs) to enter the U.S. The proclamation

restricting the ability of certain foreign nationals to use their

immigrant visas to enter the U.S. was for an initial 60-day period.

Within this proclamation was a provision that required the

Secretaries of Labor and of Homeland Security to review U.S.

nonimmigrant visa programs in the U.S. and make recommendations to

limit these programs. Intense lobbying and outreach efforts are

underway by organizations and individuals representing many

industries to try to limit the impact of such a new proclamation on

U.S. nonimmigrant visa programs. Fakhoury Global Immigration (FGI)

has provided advice and guidance in these efforts and is carefully

monitoring developments concerning potential restrictions with

respect to the H-1B, H-2B, L-1, and J-1 nonimmigrant visa

programs.

We understand that the Secretaries of Homeland Security and

Labor, along with senior White House and agency staff, briefed the

President on June 16, 20202 on the review of

nonimmigrant visa programs and their recommendations on potential

changes that could be made through executive authority or

regulatory change. Although the details of the impending extension

and expansion of the proclamation have yet to be revealed, there

are indications that the President may issue a proclamation

temporarily barring foreign nationals using an H-1B, H-2B, L-1 and

J-1 visa from entering the U.S. It is unclear, based on current

information, whether the bar would apply to L-1A nonimmigrant visa

holders, and whether it would apply to all J-1 nonimmigrant visa

subcategories, or just some. The bar would be temporary with the

possibility of renewal. The indications are that the President may

set the duration of this initial bar somewhere between 90 and 180

days. If true, this could have an impact on the start dates for

foreign nationals who are the beneficiaries of FY 2021 H-1B

cap-subject petitions.

There is also the likelihood that entry restrictions for J-1

student visa holders would affect the Summer Work Travel (SWT)

program, as well as camp counselor, intern, and trainee programs.

Exemptions are likely to be made for COVID-19 related employees

(Example: Healthcare workers) or workers involved in ensuring the

nation's food supply. Employers who conduct additional

recruitment efforts may also be subject to an exemption as

well.

Organizations as diverse as the Business Roundtable, American

Medical Association, NASSCOM, U.S. Chamber of Commerce, Association

of American Universities, American Immigration Lawyers Association

(AILA), Compete America, and many hundreds of other individual

organizations and trade groups have communicated with the President

and his senior team, making it clear how important these

nonimmigrant visa programs are to the country, and requesting he

not impose restrictions on these nonimmigrant visa programs.

Members of Congress, including Senator Lindsey Graham, as well as

governors and other elected officials have also contacted the

President and his team, with similar requests.

Leading newspapers and other media outlets have echoed these

points. On June 17th, the Wall Street Journal

published an editorial discussing the importance of nonimmigrants

and highlighting the significant harm that a bar could impose on

the country.

The U.S. Chamber of Commerce sent a letter to the While House

asking the President to reconsider these plans, citing their

potential impact on the American economy.1 “If companies cannot hire new

H-1B workers or continue to employ their current H-1B

workers,” the letter states, “innovation and productivity

growth, particularly that which is achieved through patent

production, would suffer greatly to the detriment of our overall

economy.” The letter from the Chamber of Commerce also

expresses concern over other potential policy changes

including:

  • Imposing new restrictions on hiring international students who

    were educated or trained in the U.S. and several restrictions

    limiting which foreign national graduates are eligible for work

    authorization;

  • Substantial increases in filing fees for H-1B workers, which

    would negatively impact all companies, and would be most harmful to

    small businesses that are more sensitive to drastic fee

    increases;

  • Curtailing work authorization eligibility for the H-4

    nonimmigrant spouses of H-1B nonimmigrants in the U.S., which would

    likely exacerbate worker retention issues across multiple

    industries;

  • Instituting a new requirement that companies must perform labor

    market tests for a service provider's H-1B workers.

“[R]estrictive changes to the immigration system,” the

letter concludes, “will push investment and economic activity

abroad, slowing down the recovery and reducing job

creation.”

Moreover, on June 12, 2020, Americans for Prosperity and the

Libre Initiative, highly influential conservative political

advocacy groups, funded by Charles Koch and David Koch, requested

the Trump administration to reconsider any new restrictions of

temporary worker visas.2

There are reports that some organizations or individuals have

made recommendations to the Trump Administration to try to

implement the following:

  • Impose a requirement that H-1B workers being paid a Level 1

    wage not be allowed employment authorization of more than a

    two-years, and that when an H-1B worker seeks an extension of stay,

    the H-1B employer must pay that individual a wage no less than a

    Level 2 wage..

  • Create a Memorandum of Understanding (MOU) between the

    Department of Homeland Security and the Department of Labor to

    change how the Bureau of Labor Statistics will calculate its four

    wage levels, with the idea that all four wage levels will increase

    from their current rates.

  • Impose an additional H-1B filing fee of $20,000.00 on a

    petitioning U.S. employer. (Note: It is unclear if this proposed

    additional fee would be imposed on all H-1B petitions, including

    any subsequent extension petitions, or just the initial H-1B

    petition filed by the U.S. employer on behalf of the foreign

    national.)

  • Redefine key terms in the H-1B regulations, such as

    “specialty occupation,” “employer,”

    “employee,” and “employer-employee

    relationship.”

  • Rescind the rule that allows H-4 spouses of H-1B workers to be

    eligible to apply for employment authorization if certain

    conditions are met.

  • Impose new constraints on F-1 students pursuing Optional

    Practical Training (OPT) by limiting OPT eligibility to

    international students who are in the top of their graduating

    class.

  • Rescind the authority to issue work authorization to various

    categories of individuals, including Temporary Protected Status

    (TPS) recipients, asylees, and refugees.

As of this writing, President Trump has not issued a new

proclamation impacting, as a whole, nonimmigrants in the H-1B, L-1,

F-1, and J-1 visa categories, as a follow-up to his April

22, 2020 Presidential Proclamation. It is anticipated

this follow-up proclamation will be issued soon; and it is expected

that it will be subject to immediate legal challenge by various

organizations. At this time, we advise our clients to prepare for

new restrictions to be unveiled before the end of June 2020.

Footnotes

2. Rafael Bernal. “Koch

Groups Ask White House to Spare Work Visa.” The Hill

(June 12, 2020): https://thehill.com/latino/502431-koch-groups-ask-white-house-to-spare-work-visas

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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