Tracking the rumor: Possible extension of Presidential Proclamation banning Suspending Entry of H-1B, H-2B, L-1, J-1 and other non-immigrants

June 10, 2020
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AILA [American Immigration Lawyers Association] has informed its members that there have been credible rumors regarding possible Extension and Expansion of Presidential Proclamation Suspending Entry of Certain Immigrants into the United States. On April 22, 2020, the administration announced the, "Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak". That proclamation threatened not only the extension of the existing proclamation within 60 days, but also the expansion to nonimmigrant visas. Below excerpt is the understanding of AILA with regard to the possible expansion of the Presidential Proclamation.  However, this is all still in flux and is subject to change until the Proclamation is issued.  Law Office of Thomas V. Allen will continue to monitor and provide updates as appropriate.

Timing

  • The President may be deciding on the scope and timing of the proclamation as early as June 11, 2020.
  • The proclamation could be issued as soon as June 15, 2020, and will likely be issued by the end of June.
  • The proclamation could be in effect for as long as 90 to 180 days.

Possible Substance

 Proclamation barring entry to the U.S. for H-1B, H-2B, L-1 and J-1 for a temporary period pursuant to INA 212(f) and 215(a).
  • Intent is to impact FY 2021 H-1B cap-subject cases with October 1, 2020, start dates.
  • No consensus on what will happen for L-1s, but there could be an exemption for the L-1A visa category (intracompany transferee executives and managers).
  • Not clear which of the J-1 subcategories would be impacted, but likely to impact the Summer Work Travel (SWT) program, camp counselor, intern and trainee programs.
  • Proclamation will announce a temporary ban on the entry of nonimmigrant workers, but will likely NOT announce or describe other substantive policy changes which are expected to follow in regulatory proposals.
  • Proclamation will include exceptions, such as:
  • COVID-19 related exemptions, such as for health care workers
  • Food supply related exemptions
  • For U.S. employers who conduct additional recruitment efforts.

Possible Subsequent Regulations

Potential rulemakings in the works as early as July on H-1B, OPT, and H-4. It is unclear if these will go through the notice and comment process.
  • Rescind the STEM OPT regulation and add requirements to the 12-month Optional Practical Training (OPT) program.
  • Issue the Strengthening the H-1B Nonimmigrant Visa Classification Program regulation
    • Focus on employer-employee relations, specialty occupation definition, and wage levels.
    • Add $20,000 (or higher) fee.
  • Rescind the H-4 Employment Authorization Rule
  • Possible rescission of employment authorization for asylees, refugees, and temporary protected status (TPS) holders.
 

Next Steps

At this time, business groups and executives are focused on outreach to key White House officials, agency leaders, and Republican lawmakers to underscore the harm that an expansion of the proclamation, would have on our economic recovery.     Link to the news: https://www.aila.org/infonet/chasing-down-rumors

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