Presidential Proclamation Halts US Entry for Immigrant Workers

As anticipated, President Trump signed a presidential proclamation (“Suspension of Entry of Immigrants and Nonimmigrants who Current a Threat to the USA Labor Market Throughout the Financial Restoration Following the 2019 Novel Coronavirus Outbreak” hereafter “Nonimmigrant Proclamation”) extending the period of his prior suspension of immigrant visas (for these getting into the U.S. completely) and creating a brand new suspension for these searching for entry throughout a broad swath of nonimmigrant visas (these getting into quickly, notably for employment).

Background

On April 22, 2020, president Trump issued Presidential Proclamation 10014, “Suspending Entry of Immigrants Who Current Threat to the U.S. Labor Market Throughout the Financial Restoration Following the COVID-19 Outbreak”, which established a 60-day bar on sure kinds of immigrant visas, however didn’t have an effect on nonimmigrant visas. 1000’s of U.S. employers use nonimmigrant visas to rent short-term employees throughout many industries and embody many classes of employment visas, resembling the favored H-1B and L-1.

At this time, president Trump’s new Nonimmigrant Proclamation prolonged the period of the bar on immigrant visas by December 31, 2020 (with potential extensions thereafter) and created a brand new bar for these searching for to enter the U.S. within the following nonimmigrant visa classes: H-1B (specialty occupation), H-2B (short-term employees), L (intracompany transferees), and J (trade guests).

The brand new Nonimmigrant Proclamation will go into impact at 12:01 A.M. jap daylight time on June 24, 2020 and be in power by December 31, 2020, with the potential for extensions thereafter.

The president deemed the immigrant and nonimmigrant bars essential to keep away from competitors for U.S. employees in the course of the financial downturn and excessive unemployment brought on by the COVID-19 pandemic.

Who’s Lined by the New Proclamation?

The brand new Nonimmigrant Proclamation impacts most, however not all, overseas nationals searching for entry within the affected H-1B, H-2B, L, and J visa classes, with a number of caveats and exceptions.  An evaluation of the now prolonged April 22, 2020 immigrant Proclamation’s protection and exceptions could be discovered right here.

First, the brand new Nonimmigrant Proclamation solely covers people who meet the all the following three necessities:

Outdoors the USA on the efficient date of the Proclamation (June 24, 2020);
Don’t maintain a nonimmigrant visa legitimate on the efficient date of the Proclamation; AND
Don’t maintain an official journey paperwork apart from a visa (e.g., transportation letter, boarding foil, or advance parole doc).  Such paperwork are not often utilized by nonimmigrant visa holders within the affected classes.

The truth that the suspension is not going to cowl these already holding visas will go far in limiting injury to the various U.S. employers using these visa classes.  Preliminary indications from the White Home seem to indicate that these already on visas is not going to be barred from extending or renewing their visas whereas the brand new Nonimmigrant Proclamation is in place, however we count on written steering within the coming days.

Would-be entrants within the following visa classes, together with anybody accompanying or following to affix them (e.g., dependent relations), are actually barred from receiving preliminary visas and getting into the USA:

H-1B: The H-1B is the workhorse visa for a lot of industries, together with tech and finance, with 85,000 new visas issued per 12 months.  Whereas H-1Bs topic to the 85,000 visa quota apply in April annually, they usually can’t start their H-1B positions till October 1 of the 12 months they’re permitted. The Nonimmigrant Proclamation’s timing means it’s going to cease most of the H-1B employees permitted in 2020 who haven’t but entered the U.S.
J: The Proclamation bans entry for J visa holders solely within the following packages: “intern, trainee, instructor, camp counselor, au pair, or summer time work journey.” The J-1 visa is damaged into 13 classes and used for a broad vary of short-term employees and trade guests, together with professors, docs, interns, and trainees, amongst others.  For instance, the J-1 is broadly used to workers seashores, amusement parks, and camps in the course of the summer time.  These summer time work journey J-1 classes are actually barred whereas these masking professors, docs, and sure college students should not impacted.
L: The L visa covers intracompany transferees in two classes: (1) the L-1A for managers/executives and (2) the L-1B for these with specialised information.  An L-1 worker have to be shifting to a U.S. entity after not less than a 12 months of qualifying expertise with a associated overseas entity.  A potential exemption for L-1A visas was broadly reported, however omitted of the ultimate Proclamation.
H-2B: The H-2B visa is used to fill short-term positions in non-agricultural industries, resembling landscaping, meat packing, and building, amongst others, usually to satisfy seasonal and short-term wants.

Mockingly, many individuals affected by the Nonimmigrant Proclamation are already unable to enter the U.S. because of the ongoing closure of all U.S. Embassies and Consulates since March 2020 that has nearly utterly stopped the issuance of U.S. visas.  There isn’t any introduced date for re-starting visa issuances within the close to future.

Additional, the continued COVID journey bans for people searching for U.S. entry after being bodily current over the last 14 days in one of many 34 banned nations (China, Iran, the United Kingdom, the Republic of Eire, Brazil, and 29 nations within the European Schengen space).  Suspension of routine visa companies at Embassies  and Consulates  and the COVID journey bans have been in place for a number of months, with no official phrase on after they is perhaps lifted.

The Nonimmigrant Proclamation additionally calls on the related Govt businesses to review potential extra laws and investigations into the implementation and potential modifications to present inexperienced card and short-term visa packages. Govt management has already talked about utilizing the approaching weeks and months to shift the U.S. immigration system in direction of the president’s most popular “advantage based mostly” mannequin, which has made no progress by legislative motion.  The Proclamation particularly requires the next extra measures to be taken by the businesses:

Situation laws or take extra actions to make sure that those that have already been admitted, or are searching for admission, on an EB-2 immigrant visa, EB-Three immigrant visa, or H-1B nonimmigrant visa don’t restrict alternative for U.S. employees. This may possible embody modifications and additional restrictions to the Division of Labor’s Everlasting Labor Certification Program (PERM) and the Labor Situation Utility (LCA) Specialty Occupations with the H-1B, H-1B1 and E-Three Packages.
The Division of Labor can also be instructed to “undertake, as applicable, investigations” of LCA violations by employers sponsoring H-1B visa holders.
Take into account issuing laws or different actions regarding the allocation of visas and making certain the presence of H-1B employees in the USA “doesn’t drawback United States employees.” In different phrases, additional modifications and limitations to the annual H-1B lottery course of are possible.
Put measures in place to require nonimmigrants and immigrants to register their biometrics, together with pictures, signatures, and fingerprints, earlier than receiving a visa or admission into the USA.
Take steps, in keeping with regulation, to stop sure people who’ve remaining orders of removing; who’re inadmissible or deportable from the U.S.; or who’ve been arrested for, charged with or convicted of a felony offense within the U.S., from having the ability to work in the USA. May this imply the administration could try to concern guidelines denying work authorization to nonimmigrants arrested, charged or convicted of minor felony offences?

The Nonimmigrant Proclamation is explicitly not meant to have an effect on people searching for asylum, refugee standing, or different types of humanitarian aid.

Who’s Exempted from the New Proclamation?

The Nonimmigrant Proclamation explicitly exempts the next people:

U.S. lawful everlasting residents (aka inexperienced card holders).
The partner or kids of a U.S. citizen.
Overseas nationals searching for entry for “short-term labor or companies important to the USA meals provide chain[.]”
Overseas nationals whose entry would “be within the nationwide curiosity as decided by the Secretary of State, the Secretary of Homeland Safety[.]”

The Nonimmigrant Proclamation authorizes the Secretaries of State, Labor, and Homeland Safety to outline who falls underneath the “nationwide curiosity” exception and states that any such requirements ought to embody those that are:

“[C]ritical to the protection, regulation enforcement, diplomacy, or nationwide safety of the USA”[.]
Present medical care to hospitalized COVID-19 sufferers.
Present COVID-19 medical analysis within the U.S.
Are “essential to facilitate the rapid and continued financial restoration of the USA.”

The breadth of the ultimate “financial restoration” class will possible be a authorized battleground for corporations exterior the opposite named exempted classes.

Will It Stand Up In Courtroom?

As with the president’s different immigration-related proclamations and government orders, court docket challenges are possible. Given the Nonimmigrant Proclamation’s restricted scope, non-application to present visa holders, and exceptions, coupled with the broad government immigration powers acknowledged by the US Supreme Courtroom in its evaluate of prior immigration journey bans, it stands a strong probability of withstanding judicial scrutiny, though decrease courts could reach quickly halting its results.