Urgent Immigration Update — News of a Damaging Proposed Immigration Proclamation on Non-Immigrant Visa Holders

Kuck Baxter Immigration Immigration News, News & Videos 10 Comments

Two months ago, the Trump administration used the Coronovirus epidemic as an excuse to stop legal employment and familybased immigration to the United States. The same proponents are now poised to stop legal non-immigrant immigration through another Presidential Proclamation that may come as early as Thursday this week (although likely on a Friday afternoon, as they are wont to issue such orders outside the “news cycle”)
We normally would not promote these rumors as facts, but given their extraordinary nature, AND the massively negative impact this proclamation would have (even though it will be immediately challenged in federal court), we believe it is essential to warn our clients and friends, AND advise those who are outside the United States and who possess any of these non-immigrant visas described below, to enter the United States immediately, so as not to barred entry.

Executive Summary

  • The rumored Presidential proclamation would temporarily suspend entry of certain non-immigrant workers for a period that might be as long as 180 days (through the election and end of the year). This proclamation proposes to impact high-skilled individuals outside the U.S. seeking to enter on H-1B and L-1 visas, as well as H-2B temporary seasonal workers and certain J-1 exchange visitor participants.
  • The proclamation purports to announce a temporary ban on non-immigrant worker entries but will NOT announce or describe other substantive policy changes that we expect will follow in draconion regulatory proposals.
  • The proclamation will have a number of exceptions, supposedly to be announced by agency guidance.
  • The proclamation will likely come the last two weeks in June, but it could be as early as June 15. The April 22 proclamation temporarily suspending immigrant visa entries stated that the 50th day thereafter (June 12) would mark the expected timeline for deciding if the terms of that proclamation should be extended or modified to include non-immigrants.
  • Separately, the administration envisions a series of rule-makings, beginning perhaps as early as July, on H-1B, OPT, and H-4. In all likelihood, these will need to be notice and comment rule-makings but it is unclear if the administration will try to seek a good cause exception to APA requirements for a notice and comment period. Yet,relying on unemployed Americans as the urgency to, for example, rescind STEM OPT or H-4 work authorization seems misplaced given that computer-related occupational unemployment remains very low (2.8%) while 66% of H-4s work in STEM jobs, 76% of H-1Bs are for computer-related jobs or engineering, and most STEM OPT participants are likewise in low unemployment occupations.
The Details as We Understand Them Today
It appears there will be five different areas of executive branch activity:
1.        Proclamation barring entry to the US for L-1, H-1B, H-2B and J-1 for a temporary period under INA 212f and 215a. If this is true, it is ESSENTIAL that ALL holders of these visas currently outside the US ENTER THIS WEEK.
  • We believe that there will be significant exceptions to the non-immigrant visa suspension of entry, that will be announced by agency guidance (not by regulations).
  • Exceptions will likely include those entering for Covid-19 related activities.
  • For high-skilled workers, there will be exceptions for health care professionals, for example.
  • For lesser-skilled, there will be exceptions for H-2Bs whose jobs are related to food-supply, as described in the recent temporary final rule providing flexibility for these same H-2B workers.
  • Some sort of exception will likely to be devised by DOL, when an employer can document recent competitive recruitment efforts for the job being filled.
  • There appears to be an intention to ensure new “cap-subject” H-1B beneficiaries who would enter October 1 ARE impacted (barred entry). So, employers, be prepared to litigate this bar!
  • It is NOT clear if there is consensus that L-1A managers and executives will be included along with L-1B specialized knowledge employees.
  • It is also NOT clear which J-1 categories will be included. There are 13 sub-categories of J-1 participants including foreign medical grads receiving graduate medical education (residency training) in the US, researchers and professors, K-12 teachers and various others where it would be quite surprising for there to be any suspension of entry. The categories that have garnered concern in the past concerning either protection of or displacement of US workers or compliance with rules protecting wages are the summer work and travel, camp counselor, intern and trainee categories. In particular, in May there were conversations about barring entry of summer work and travel and camp counselor J-1 visa holders.
2.        We believe that there will be a regulation changing post-completion OPT and STEM OPT extension to solely a 12-month OPT program by rescinding the STEM OPT regulation, which was finalized on March 2016.
  • It is unclear if there will be new restrictions on who can participate in the 12-month OPT program. But, if so, these restrictions will likely to include requirement that OPT participants graduate at the top of their class (perhaps top 15%).
3.        Rumored regulation(s) changing the H-1B requirements:
  • Filing fee of $20,000 per case (you read that right).
  • As a user-fee supported agency, it is very unlikely USCIS on its own authority can impose fees other than those necessary to cover the cost of adjudication. For example, right now USICS is facing a financial crunch and in order make up its $1.2 Billion shortfall USCIS knows it must get congressional approval to impose a 10% across-the-board surcharge on filings. (Notably, this agency proposal is NOT the likely outcome of making USCIS solvent as Democrats are not willing to authorize such a 10% surcharge.)
  • The “Strengthening H-1B” regulation (which has been on the Unified Agenda for a long time) will be published – this is a comprehensive H-1B rule, to include redefining employer-employee relationship and redefining specialty occupation.
  • One proposal says that in another regulation, separate from the Strengthening H-1B regulation, USCIS will mandate creation of a joint employer relationship by professional services firms and their clients such that both the petitioning employer and client must obtain a certified Labor Condition Application. This will not only be highly controversial but raises significant legal and practical hurdles.
  • Another banner up the flagpole suggests that, separate from the Strengthening H-1B regulation, USCIS will require that employers are permitted to hire at level 1 wages but only for a 2 year increment, and thereafter the extension any proferred wage must be level 2 wage, and so on, for advancement through occupation levels.
4.  The BIG CHANGE would be publication, at last, of the regulation rescinding the H-4 spousal work authorization rule.
5.        A wildly controversial idea that may see its fruition in a regulation, will be eliminating work authorization for asylum seekers, asylees, those with TPS, and refugees. With regard to individuals who enter the US as refugees and those that are granted asylum, it seems the United States is actually required to provide work authorization based on the 1967 Geneva Protocol to which the US is a signatory. It also makes no sense to eliminate work authorization for bona fide asylee applicants or those granted temporary protected status. For the former our statute says you can remain here while your claim is adjudicated and in the latter the law is being invoked because a finding has been made that it’s unsafe for the US to mandate individuals return to their home country – for both asylum applicants and TPS recipients it seems unwise to say you can stay here for a period of time but cannot work to support yourself.
Obviously, this news will strike many of you as simply fanciful talk. The reality is that, given the current political climate, and the polls running strongly in favor of Biden, many of the anti-immigrant appointees believe that their time is limited to make substantial negative changes to the legal immigration system. They feel the need to “strike while they can” knowing a different President will not tolerate the anti-immigrant impulses of the current administration.
Stayed tuned to our Facebook page for updates and videos about these daily changes.

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Kuck Baxter Immigration LLC has an office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 6,000 detained immigrants. The new office is managed by our Senior Counsel Elizabeth Matherne, the former Director for the Southern Poverty Law Center’s Irwin Detention Project.

 

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About the Author

Kuck Baxter Immigration

Comments 10

  1. I’m currently L1A holder, while my family are under L2 visa, all currently in state. Is L2 Visa also likely banned if they try to reentry, even if they do not have work permit?

  2. Hi,

    I am currently finishing my OPT and my employer (a university in Maryland) decided to grant me a J-1 visa. I had an appointment at the US embassy in my home country, but then it got cancelled. So, I decided to get an appointment in a US consulate in Canada before my J-1 job appointment starts 08/31. However, the president has now issued the new proclamation (06/22) that limits and suspends entry to any alien ” who does not have a nonimmigrant visa that is valid on the effective date of this proclamation;”. I was wondering whether I am affected by this. On the one hand, I have all that is needed to get the visa soon; on the other hand, I do not have the J-1 visa yet since I need to attend the interview in Canada. Do you have any idea what my situation is or what I can expect?

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