As we notified our clients and friends two weeks ago, (and advised them to return to the United States immediately), the Trump administration has used the COVID-19 epidemic as an excuse to stop legal employment and family-based immigration to the United States. And, this newest Proclamation expands the bar to stop several types of legal non-immigrant from coming to the United States.
The Proclamation also directs the Departments of Labor and Homeland Security to commence making new regulations eliminating work permit programs and to make the EB-2 and EB-3 immigrant visa categories more difficult to obtain.
All if this is evidence of the death throes of a nativist administration that knows it will no longer be in power in January, and is making a last gasp effort to pass every piece of anti-legal immigration rules that it can while it is still in power.
This proclamation goes into effect on June 24, 2020 at midnight.
We will be having a Facebook Live event on our Firm Facebook Page on Wednesday, June 24, at 2:00 pm Eastern time. This event is open to everyone who wants to learn more details about the Proclamation and ask specific questions.
Also, Trump extended his April 24, 2020 Proclamation to bar the immigration of parents, children and siblings of US Citizens, that have waiting in line for decades to immigrate to the United States (right after Melania’s sister immigrated). Additionally, legal immigrants sponsored by US employers are also barred from entering the US through 2020, even though the employers have proven that there are no qualified, willing, and able US workers for their jobs.
- The Presidential proclamation suspends the entry of certain non-immigrant workers until December 31, 2020. This proclamation 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 ban on entry applies to any foreign national who:
- (i) is outside the United States on June 24, 2020;
- (ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
- (iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid June 24, 2020, or is issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
- The proclamation asks DHS to change regulations to take work permits away from those seeking relief in removal proceedings, and from those who cannot be deported. DHS is also instructed to make it harder to obtain H-1B visas. The Department of Labor is instructed to make obtaining employment based visas more difficult and to conduct intensive investigations or employers who abuse the legal immigration system.
- The proclamation has a number of exceptions for those currently outside the United States or who travel during this period, including:
- any lawful permanent resident of the United States;
- any foreign national who is the spouse or child of a United States citizen;
- any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- any foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security.
- Remember, that the administration envisions a series of rule-makings, beginning in 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.
There are five different areas of executive branch activity:
1. The Proclamation bars entry to the US for L-1, H-1B, H-2B and J-1 under December 31, 2020, under INA 212f and 215a.
- The DOS and DHS have been told to create a process for 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!
- The L visa bar INCLUDES L-1A managers and executives, along with L-1B specialized knowledge employees. For major foreign owned employers, like Kubota, Mercedes, BMW, KIA, and others, this has a MASSIVE impact on thier ongoing operations and future investment in the United States;
- The J-1 categories affected are interns, trainees, teachers, camp counselors, au pairs, and summer work travel program attendees, and their spouses and children. School districts, get ready for a major problem in staffing your classes this fall!
2. Student visa holders (F-1) and universities appear to have escaped unscathed in the particular Proclamation, but we continue to 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 2016.3. The rumored regulations changing the H-1B requirements remain in play, including:
- a new 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 USCIS 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. This is not mentioned in the Proclamation (after a LOT of lobbying by Tech firms, BUT we understand it remains in play as an option this fall.
5. Separately, the Trump Administration has announced planes to essentially eliminate the work authorization for asylum seekers. 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.
Each of these changes has been planned by anti-immigration forces within the administration since the inception. None of these were created out of whole cloth. The fact that they are introducing them now, under the cover of COVID-19 makes it clear that they see their days in power as numbered and feel compelled to issue as much rulemaking and orders as they possibly can, while they still hold a tenuous grasp on power.
Stayed tuned to our Facebook page for updates and videos about these daily changes.
At Kuck Baxter Immigration, we are dedicated to providing you up to the minute information through Twitter, Facebook, Linkedin, our Blog, and our Podcast. Don’t forget to check these out, and don’t hesitate to send your questions or comments. Information and knowledge are power.
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