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As expected, President Trump signed a Proclamation suspending entry into the United States of certain people eligible for temporary work visas, their spouses, and children effective June 24, 2020, until December 31, 2020. The Proclamation also extends an earlier ban (we reviewed the “green card” entry suspension in April) on the entry of new immigrants (with certain exceptions) to the same date.
The stated reason for the Proclamation is to open up jobs for U.S. workers who the President believes compete with foreign workers.
Note that earlier orders banning entry of people arriving from China, Iran, the Schengen area of Europe, U.K., Ireland, and Brazil because of concerns about the spread of COVID-19 are still in place.
Who is NOT affected by the new entry suspension?
Let’s start with who is not affected by the new Proclamation.
The Proclamation does not apply if you:
- Are now inside the United States
- Have a valid visa on June 24, 2020
- Have a travel document, such as advance parole, valid on June 24, 2020
- Are a lawful permanent resident of the United States
- Are the spouse or child of a U.S. citizen
- Are entering to perform labor or services essential to the U.S. food supply chain
- Are a person whose entry would be in the national interest
- Are a child who would “age out” (turn 21) and no longer be able to immigrate with your family
- Are seeking a temporary work visa other than H-1B, H-2B, L, or a J intern, trainee, teacher, camp counselor, au pair, or summer work travel program participant
Whose entry is in the national interest?
The Departments of State, Labor, and Homeland Security are to decide whose entry is in the national interest. However, the Proclamation states that the definition should include those who are:
- Critical to the defense, law enforcement, diplomacy, or national security of the U.S.
- Providing medical care to persons who are hospitalized for COVID-19
- Conducting medical research into COVID-19 at U.S. facilities
- Necessary to facilitate the “immediate and continued economic recovery” of the U.S.
It appears that consular officers and border patrol agents are tasked with making these calls, following standards to be issued by the agencies. Whether centralized decision-making (sending the requests for exceptions to U.S. headquarters offices, for example) will be required is not yet clear.
Additional measures being considered
The Proclamation also orders agencies to consider and implement the following measures as necessary:
- Ways to reduce the risk of the spread of COVID-19 through entry of foreign workers
- Actions to ensure that persons already admitted in or seeking H-1B or certain immigrant categories (EB-2 or EB-3) do not “disadvantage” U.S. workers, primarily in terms of wages
- Investigating non-compliance with Department of Labor rules for employment of H-1B workers
- Requiring collection of photographs, signatures, and fingerprints for visa issuance, entry, and “other benefits”
- Preventing persons who are inadmissible/deportable or who have been “arrested for, charged with, or convicted of,” a criminal offense in the U.S. from obtaining permission to work in the U.S.
- Changing the regulations regarding the H-1B lottery to ensure that H-1B workers do not “disadvantage” U.S. workers
While some of these ideas may look reasonable on the surface – and are already part of existing law – most raise serious concerns.
For example, all people who receive a visa are fingerprinted, photographed, and have provided their signature. If biometrics are required for changes of status, changes of employer or extensions of stay in the U.S., experience tells us that these processes will slow to a crawl. No evidence indicates that people on temporary work visas raise a security or criminal risk making this measure necessary.
Another concern is the potential gutting of the American assumption of “innocent until proven guilty” if persons who have been arrested for or charged with a crime cannot obtain a work visa.
Regarding wage competition, the H-1B and H-2B and immigrant programs targeted already have strict wage provisions developed in connection with the Department of Labor. Leaks from the administration indicate that rules are being considered to somehow limit applications to the highest paid jobs.
Note that none of these rules are in effect at this time. The Proclamation orders the agencies to consider them and reliable information indicates that consideration is well underway.
Immediate takeaways
If you are here with a temporary visa in a covered category (H-1B, H-2B, L, covered J, or a dependent spouse or child) do not travel internationally without consulting your immigration attorney.
If you are outside the U.S. and were planning to enter in a covered category when the consulates open (or an employer who was sponsoring a person for such entry), contact your immigration attorney to determine if an exception could apply to the ban on entry.
For example, a number of employers have H-1B employees currently working overseas because their re-entry to the U.S. following personal vacation was prevented by COVID-19 prevention measures. Under this new proclamation, those employees may not be able to re-enter until at least December 31, 2020. As covered previously, allowing an employee to work from abroad presents some employment and tax law concerns.
If you are an employer who understands the adverse effect this measure will have on the ability of the U.S. economy to recover, contact the White House and your members of Congress.
We are happy to work with you on talking points and our Government Relations attorneys are also here to help.
