Certain Nonimmigrant Visa Entries Suspended, and Suspension on Issuance of Immigrant Visas Extended
- H-1B “specialty occupation” visas: This ban will have a particularly stinging impact on recent H-1B visa winners, selected under this year’s 2020 H-1B visa lottery. Those whose cases were approved—ostensibly permitting them to enter to begin work in H-1B status at the start of the fiscal year on October 1, 2020—will now be unable to enter the U.S. in early October to begin the petitioned-for employment. This may deeply hurt employers relying on valuable specialty occupation workers to fill professional roles, which historically has added significant knowledge and experience capital to augment existing U.S. workforces. The ban also applies to any foreign national accompanying or following to join a family member with H-1B status.
- H-2B “temporary non-agricultural worker” visas:
- L-1 “intracompany transferee” visas: This ban will apply to all L visa holders, and any foreign national accompanying or following to join such foreign national.
- J-1 Exchange Visitor visas: Exchange visitor entries are limited to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join an individual in J-1 status.
- Are outside the United States as of 12:01 am on June 24, 2020;
- Do not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
- Do 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.
- Any lawful permanent resident of the United States (“Green Card” holders);
- Any foreign national who is the spouse or child (as defined in the Immigration and Nationality Act, including certain unmarried people under age 21) 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
- Whose presence is critical to the defense, law enforcement, diplomacy, or national security of the United States;
- Who are involved in the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
- Who are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or
- Who are deemed necessary to facilitate the immediate and continued economic recovery of the United States.
- The Secretary of Labor, in consultation with the Secretary of Homeland Security, are tasked with considering promulgating regulations or taking other appropriate actions to ensure that the presence in the United States of foreign nationals who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa, do not disadvantage United States workers.
- The Secretary of Health and Human Services, through the Director of the Centers for Disease Control and Prevention, will provide guidance to the Secretary of State and the Secretary of Homeland Security for implementing measures that could reduce the risk that foreign nationals seeking admission or entry to the United States may introduce, transmit, or spread SARS-CoV-2 within the United States.
- The Secretary of Homeland Security will:
- Take action to ensure that foreign nationals be deemed ineligible to apply for a visa, admission or entry into the United States, or apply for other benefits, until they have been registered with biographical and biometric information (including photographs, signatures, and fingerprints);
- Take steps to prevent certain aliens from obtaining eligibility for work authorization in the U.S.—including foreign nationals with final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States; and
- Consider circulating regulations or taking other appropriate action regarding the efficient allocation of visas for temporary workers and trainees, including H-1B workers, and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage U.S. workers.
- Requiring that H-1B workers paid at the lowest wage level (of the four wage levels set by the DOL) be granted a maximum of two years of employment authorization, instead of the current limit of up to six years. Upon request to extend or renew status, it is proposed that employers also be required to pay the individual no less than wage level two, or the worker’s visa will not be extended. This poses significant challenges based on current trends, where any petitions submitted at a level 1 wage face likely challenges from U.S. Citizenship and Immigration Services in order to achieve approval. It’s possible that, under the new minimum requirements, jobs at a level 2 wage might also come under attack.
- For a primary employer that has assigned a foreign national employee to working at a client’s worksite, requiring that both the primary employer (e.g., an IT services company) and secondary employer (e.g., the client of the IT services firm) must file a Labor Condition Application with the Department of Labor for a given H-1B worker.
- For a Memorandum of Understanding between DHS and DOL to change how the U.S. Bureau of Labor Statistics will calculate its four wage levels, with the idea that all four wage levels will increase from their current rates.
- Imposing an additional $20k fee on all H-1B petitions (this is likely to be challenged in the courts if imposed).
- To redefine, by regulation, key terms connected with the H-1B program, including “specialty occupation,” “employer,” “employee,” and “employer-employee relationship.” These terms have been subject to redefinition (specifically, narrowing of the definition) on an arbitrary, policy basis over the last several H-1B petition cycles. While the regulatory definition of these terms might prevent future arbitrary and inconsistent application of the terms, it might also simply codify unreasonably restrictive definitions that have been applied over the course of the past several years.
- To rescind the ability of H-4 spouses of H-1B visa holders to apply for employment authorization
- To rescind the Science, Technology, Engineering and Math (STEM) Optional Practical Training extension rule, which currently allows up to an additional 24 months of employment authorization in OPT status beyond the normal one year of OPT status available to all recent graduates of U.S. universities. This would make it even more difficult for recent STEM graduates to qualify for H-1B specialty occupation status, which is most commonly used by foreign graduates of U.S. universities to apply their skills and learning achieved at U.S. universities for the benefit of the U.S. market.
- To limit qualification for employment authorization under the Optional Practical Training program to international students who are in the top 5%-15% of their graduating class.
- To rescind the work authorization of various categories of individuals, including Temporary Protected States (TPS) recipients, asylees, and refugees. This would make it difficult if not impossible for status recipients under these programs to support themselves and their families, and likely create a large number of foreign individuals in the U.S. who would be subject to deportation from the U.S. under the recently-revised public charge inadmissibility rule.
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