By Roujin Mozaffarimehr and Kalpana Peddibhotla
On June 22, 2020, President Donald Trump signed a Presidential Proclamation intended to suspend the entry of certain nonimmigrants purportedly present a risk to the U.S. labor market in the period of economic recovery following the COVID-19 outbreak.[1][2] The suspension is set to take effect at 12:01 AM EST on June 24th, 2020 and will last through December 31, 2020. The Proclamation further extends President Trump’s April 2020 suspension on certain immigrants through December 31st as well.[3]
President Trump’s Immigration Proclamation claims to be in response to the U.S.’s impending economic contraction; however, as we discuss below, this suspension will have little impact on protecting the U.S. labor market. It instead appears to be another brick in the Trump Administration’s invisible wall and pursuit of an anti-immigrant agenda as we approach November.
A. Breakdown of the Proclamation
Section 1 of the Proclamation extends the suspension of entry of immigrants that were subject to the ban in April 2020. ImmiCore Law provided an analysis on that proclamation here.
Section 2 of the suspension details the expansion of the limitation on entry to the following visa classifications:
- H-1B and H-2B visas and accompanying dependents;
- J visas (interns, trainees, teachers, camp counselors, au pairs, or summer work travel program) and accompanying dependents; and
- L visas and accompanying dependents.
Three elements must be met to be subject to the suspension. According to Section 3 of the proclamation:
a) The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:
(i) is outside the United States on the effective date of this proclamation;
(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 on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
Who is exempted?
- Persons with valid visas or official travel documents such as an advance parole document and who are currently abroad
- Lawful Permanent Residents (green card holders);
- Spouses or children of US citizens[4],
- Aliens entering to provide temporary labor or services essential to the United States food supply chain, and
- Aliens who would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.[5]
The Proclamation further exempts children who would age out as a result of this suspension.[6]
At the moment, this Proclamation does not impact persons who are currently in the U.S. Persons who are currently in the U.S. can continue to work and apply for change of status and extensions of stay without issue. (Please see our analysis in Section C of potential expansions of the Proclamation).
Who is not included?
Beyond the explicit exemptions noted above, there are also several categories of individuals that are not included:
- Canadian Nationals—Canadian nationals entering the U.S. in H-1B, J-1, and L-1 do not apply for a visa when entering the U.S., so this Proclamation does not appear to ban Canadian nationals seeking to enter in these categories.
- Persons currently in the U.S. with valid visas – White House agencies held a guidance call the evening of 6/22/2020 to clarify that this Proclamation will not affect the ability of existing visa holder to travel abroad and renew their visas and re-enter the U.S. through December 31, 2020.
- Potentially: Persons currently in the U.S. without valid visas. Section 3 of the proclamation details 3 inclusive factors, each being required to be subject to the ban. The ImmiCore Law team along with other practitioners are awaiting clarification on this point, but theoretically since all three factors must be satisfied to be impacted by the ban, anyone in the U.S. when the ban takes effect is not subject to it. Under this logic, persons who are currently in the U.S. and later travel abroad should be able to apply for visa stamps to re-enter the U.S. without issue.
Who the Ban applies to:
- Persons who are outside of the U.S. that seek entry in H-1B, H2B, L-1, or J-1 and do not have a valid visa. This includes:
- Persons with expired visas who have been stuck outside of the U.S. as a result of COVID-19 and consulate closures who were previously in the U.S. in the above-listed classifications. This ban essentially continues to strand persons who, by no fault of their own have been waiting for Consulates to re-open to go for visa stamping. This includes families and long-time employees and contributors to the U.S. economy.
- Persons abroad who were selected in the FY2021 H-1B Cap with a start date of October 1, 2020. These individuals either have approved petitions or their cases are currently being filed with USCIS. They will not be able to apply for a visa even if their petition is approved stateside by USCIS until the ban is lifted or an injunction is put in place by the Courts.
- Other Persons abroad who are currently in the process of having applications and petitions for H-1B, H-2B, L-1, and J-1 classification prepared and filed.
It is important to note employers can still file petitions with USCIS for persons who are abroad during this suspension. USCIS will continue to adjudicate these cases, but visas will only be issued if applicants fall within one of the exemptions listed above, when the suspension is lifted, or if an injunction is put in place by the Courts on the Proclamation.
FY 2021 H-1B Cap Petitions: We encourage employers to continue to file for the H-1B cap cases so as to not miss important legal deadlines.
B. This Proclamation will have little impact on protecting the U.S. labor market. It is instead another brick in President Trump invisible wall and anti-immigrant agenda.
Beginning in March, U.S consulates and embassies abroad closed and remain closed through this writing. We continue to ban entry most foreign nationals from most of Europe, China, and parts of Asia. As we predicted in our analysis of the previous Proclamation in April, it appears that the initial Proclamation was a steppingstone for further action. The President did not lift the April ban after 60 days but rather extended it another 6 months and has expanded it to include skilled workers, foreign exchange program participants, and intracompany transferees.
The Proclamation purports to be in response risks of displacing and disadvantaging United States workers during the current COVID-19 recovery, stating that “more than 20 million United States workers lost their jobs in key industries where employers are currently requesting H-1B and L workers to fill positions.” The Migration Policy Institute, “estimates that the restrictions will block about 325,000 immigrants and their family members through the end of the year.”[7]
The limitations to the entry of foreign nationals in these classifications will impact recruitment efforts by U.S. companies seeking to attract the brightest through these skilled worker classifications. Moreover, it will have lasting effects on University enrollment, discouraging students from wanting to come study and work in the U.S.[8] Even worse, the more the U.S. restricts legal immigration, including skilled workers, the more foreign nationals will look to invest and set up shop in other countries. U.S. employers may eventually expand outsourcing of jobs as a result.
While the President cites INA Sec. 212(f) and 215(a) as the authorities for this Presidential Proclamation, such authority is not sweeping and has been previously checked by the U.S. Supreme Court. This Proclamation is poised for litigation in the coming days.
C. Potential Expansions of Immigration Restrictions
While the Proclamation primarily targets individuals who are currently outside of the U.S., Section 5 provides for additional expansion to the EB-2 and EB-3 employment-based categories as well as H-1B workers that are in the U.S.
The EB-2 and EB-3 categories are already subject to rigorous recruitment standards to identify eligible U.S. workers. Thus, this Proclamation seems written for a political victory as opposed to acknowledging the existing standards taken to protect U.S. workers.
But beyond the political showmanship, the fact that the President is by Proclamation suggesting new standards should apply is concerning if it works to skirt the rulemaking process that led to our existing regulations.
D. Conclusion
In our opinion, this Presidential Proclamation is not reasonably tied toward protecting U.S. jobs. Instead, it is just a continuation of this Administration opportunistically using COVID-19 to implement its anti-immigrant agenda.
The premise of this proclamation is that immigrants depress our economy, whereas every major non-partisan study concludes that immigrants have historically been critical to the growth of the U.S. economy.
U.S. employers have already invested thousands of dollars in finding and hiring talent for specific projects and are unlikely to be able to re-invest and immediately hire new workers to fill those now-vacant positions.
“What’s to stop U.S. employers from just moving those job overseas?”[9]
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[1] “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
[2] This blog does not discuss in detail additional provisions in the Proclamation targeting individuals in removal proceedings or who have prior criminal convictions (which would include misdemeanors such as DUIs, and petty theft).
[3] “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/
[4] As defined in INA Sec. 101(b)(1)
[5] In defining what meets the “in the national interest standard,” indicates that the Secretaries of State, Labor and Homeland Security will establish those standards including those that:
“ …are critical to the defense, law enforcement, diplomacy, or national security of the United States; are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.”
[6] The Secretary of State and the Secretary of Homeland Security shall exercise the authority under section 3(b)(iv) of this proclamation and section 2(b)(iv) of Proclamation 10014 to exempt alien children who would as a result of the suspension in section 2 of this proclamation or the suspension in section 1 of Proclamation 10014 age out of eligibility for a visa.
[7] See Hackman, Michelle. “Trump Moves to Temporarily Suspend New H-1B, Other Visas Amid Covid-19 Pandemic.” Wall Street Journal, June 22, 2020 (https://www.wsj.com/articles/trump-order-would-temporarily-suspend-new-h-1b-other-visas-11592853371).
[8] Id.
[9] Partner Kalpana Peddibhotla quoted in India-West: See Sohrabji, Sunita. “Trump Issues Proclamation Suspending H-1B Workers from Entering U.S.; Includes H-2B, L-1 and J-1 Workers.” India-West, June 22, 2020 (https://www.indiawest.com/news/business/trump-issues-proclamation-suspending-h-1b-workers-from-entering-u-s-includes-h-2b-l/article_35bca504-b4f5-11ea-b98c-63e63f46ea11.html).