The President issued a brand new proclamation that suspends the admission of sure employment-based nonimmigrant visa holders to the U.S. and extends a earlier suspension via Dec. 31, 2020
The proclamation was issued within the curiosity of defending American staff, on account of the impacts of COVID-19
The proclamation consists of sure exceptions and hints at future regulatory actions that would additional impression U.S. immigration
On June 22, 2020, after weeks of rumors about anticipated motion, President Trump formally issued a new proclamation that suspends the issuance of sure classes of short-term visas (H-1Bs, H-2Bs, L-1s, sure J-1s, and their dependents) to people assembly particular standards. The suspension goes into impact on Wednesday, June 24, and formally applies to overseas nationals assembly the next standards:
They’re outdoors america on the efficient date of this proclamation;
They don’t have a nonimmigrant visa that was legitimate as of the efficient date; and
They don’t have an official journey doc apart from a visa (akin to a transportation letter, an acceptable boarding foil, or an advance parole doc) that was legitimate on the efficient date, or issued on any date thereafter that allows her or him to journey to america and search entry or admission.
The proclamation states that the admission of those people to the U.S. would have a detrimental impression on the U.S. labor pressure and suspends the issuance of such visas, with sure exceptions, via Dec. 31, 2020.
Extension of Immigrant Visa Proclamation
Along with the suspension of those short-term nonimmigrant visas, the new proclamation extends a earlier proclamation that suspended the issuance of sure immigrant visas for a interval of 60 days. That suspension is now efficient via the tip of the yr.
Additional Actions Relating to Different Visa Entrants and Work Authorization
This new proclamation hints at additional actions impacting EB-2 and EB-Three immigrant visa entrants, H-1B visa entrants, in addition to to the allocation of H-1B visas within the subsequent lottery.
The proclamation additionally directs the Secretary of the Division of Homeland Safety to take acceptable steps to keep away from issuing work authorization to people who’ve been issued remaining orders of removing, who’re inadmissible or deportable, and people who have been arrested for, charged with, or convicted of a prison offense in america.
Right here is an FAQ overlaying many doable questions concerning the new Presidential proclamation:
1. What visa classes are coated by the proclamation?
H-1B, L-1, H-2B, H-4, and J-1 nonimmigrant visas are coated.
The proclamation will quickly droop the entry into the U.S. of recent H-1B specialty occupation, high-skilled staff and L-1 intracompany staff, who’re inner transfers of executives, managers and staff with specialised information from multinational firms.
It would additionally droop entry of overseas nationals within the following nonimmigrant visa classes:
H-2B visas for short-term seasonal staff with an exception for jobs in agriculture
J-1 visas for change customer staff akin to interns, trainees, summer time work journey program individuals, au pairs and camp counselors
Dependent spouses and rapid relations of those visa classes (H-1B, L-1, H-2B, and J-1) are additionally suspended from entry to the U.S.
The order doesn’t apply to reentry of Lawful Everlasting Residents of the U.S., spouses and minor kids of U.S. residents. Different exceptions embrace sure staff within the meals provide chain, well being care professionals, and people whose entry could be within the “nationwide curiosity.”
2. What’s the foundation for this proclamation?
The proclamation is a continuation and additional enlargement of the President’s preliminary proclamation, issued in April, reflecting his acknowledged function of defending American staff’ jobs in mild of the COVID-19 pandemic. That preliminary proclamation positioned a short lived pause on processing of inexperienced card circumstances outdoors of the U.S. and was set to run out this week, following the designated 60-day interval. The brand new proclamation extends the unique ban and expands restrictions to the commonest nonimmigrant work visa classes.
Additional, the brand new proclamation cites the financial disruption attributable to the pandemic and the excessive unemployment charge within the U.S. between February and Might. “[T]he Secretary of Labor and the Secretary of Homeland Safety reviewed nonimmigrant applications and located that the current admission of staff inside a number of nonimmigrant visa classes additionally poses a threat of displacing and disadvantaging United States staff in the course of the present restoration.”
3. Does the proclamation have an effect on people in america with a sound standing?
People contained in the U.S. and in legitimate H, L, or J standing aren’t included on this proclamation. It particularly impacts those that are outdoors the U.S. as of June 22, 2020, don’t at present have a sound non-immigrant visa, and should not have an official journey doc apart from a visa.
4. Does the proclamation impression people searching for a change of standing on this yr’s H-1B lottery?
These overseas nationals searching for a change of standing within the H-1B lottery, and who’re at present within the U.S., is not going to be affected by the proclamation. These searching for a change of standing are suggested to not journey outdoors the U.S.
Nevertheless, the Secretary of Homeland Safety and the Secretary of Labor are directed to promulgate rules and to take enforcement actions in compliance with the necessities of the Labor Situation Functions (LCA), and the phrases of the PERM Software for Labor Certification for an EB-2 or EB-Three everlasting residency case. It will doubtless lead to Division of Labor (DOL) audits for compliance of each the LCA and PERM utility licensed for a selected case. The Division of Homeland Safety (DHS) and the U.S. Citizenship and Immigration Providers (USCIS) web site visits will even doubtless improve together with request for added proof.
5. Does the proclamation impression people on an H-1B visa searching for a change of employer/ portability?
This strategy of H-1B portability entails a overseas nationwide in legitimate H-1B visa standing within the U.S. being sponsored by a brand new employer submitting a brand new I-129/H-1B petition.
If nevertheless, the overseas nationwide is outdoors a 60-day grace interval after a layoff, the proclamation will apply. This overseas nationwide with a previous H-1B visa standing within the U.S. must depart the U.S. and search a brand new H-1B visa stamp at a U.S. Consulate after the approval of the brand new I-129/H-1B petition for the brand new employer. Until the case falls into one of many enumerated exceptions of the proclamation, they’re barred from entry till Dec. 31, 2020:
Crucial to protection, legislation enforcement, diplomacy or nationwide safety of the U.S.
Concerned with the supply of medical care to people with COVID-19 and at present hospitalized
Concerned with the supply of medical analysis at U.S. amenities to assist the U.S. fight COVID-19
Essential to facilitate the rapid and continued financial restoration of the U.S.
International nationwide kids who would “age out” on account of the suspension
6. Does the proclamation have an effect on people searching for to “consular course of” an H-1B visa?
The proclamation will have an effect on the issuance of H-1B and H-Four laser visa stamps at a U.S. Consulate overseas the place a overseas nationwide could be making use of. That is true whether or not it’s for an preliminary H visa stamp or the renewal, until the actual case falls into one of many enumerated exceptions.
Notice that this proclamation barring the H-1B / H-Four class is along with the journey ban associated to COVID-19 that stay in place for China, Iran, the Schengen Space, Eire the UK and Brazil.
7. Does the proclamation impression H-4s within the U.S. who’re making use of for an Employment Authorization Doc (EAD)?
They don’t, nevertheless new rules rescinding the H-Four employment authorization choice for spouses within the strategy of acquiring everlasting residency could also be promulgated quickly by USCIS. As well as, if an H-Four partner or any overseas nationwide in these visa classes within the U.S. has been arrested, charged or convicted of a criminal offense, they are going to lose work authorization underneath this proclamation.
We anticipate this provision will likely be challenged as a violation of rulemaking necessities underneath the APA.
8. Does the proclamation impression L-1 visa candidates at U.S. Consulates?
Each particular person I-129/L-1 petitions and Blanket L-1 /I-129S Petitions requiring visa issuance at a U.S. Consulate overseas are barred from visa issuance until one of many exceptions apply.
9. Does the proclamation impression E-2 visa candidates?
The proclamation doesn’t apply on to the E, O, P or TN visa classes.
Nevertheless, we anticipate that U.S. consular officers worldwide and USCIS adjudicators will apply the next degree of documentary proof to exhibit eligibility from petitioning employers and the beneficiary staff.
10. Does this proclamation impression people searching for everlasting residence via adjustment of standing or searching for naturalization in america?
The proclamation doesn’t impression individuals searching for authorized everlasting residency via adjustment of standing with USCIS or naturalization. The President could difficulty proclamations governing the entry of individuals into the U.S.; nevertheless, as a way to change or restrict immigration processes for individuals already within the U.S., a extra formal course of, “discover and remark rulemaking,” is required.
11. Does the proclamation impression people outdoors america who already had a sound H-1B, L-1, or J-1 visa of their passport on June 24, 2020, the efficient date?
The Proclamation exempts individuals with a sound H-1B, L-1, or J-1 visa.
12. Is the President anticipated to difficulty any extra proclamations impacting U.S. immigration?
Given the frequency of immigration associated proclamations issued by President Trump, the potential for future proclamations considerably impacting U.S. immigration will not be discounted.