President Trump has issued a new executive order on August 3, 2020, titled, "Executive Order on Aligning Federal Contracting and Hiring Practices With the I
On Monday, June 22, 2020, President Trump signed a new presidential proclamation that suspends H-1B, L-1, J and other temporary work visas till December 31, 2020. The latest executive order which is effective from June 24, 2020, EDT, also extends the previous one signed in April that temporarily suspended the entry of certain immigrants into the nation. This move was anticipated and there has been widespread speculation about the nature of the new executive order as the previous one was due to expire on June 22, 2020.
Who Is Affected?
According to the presidential proclamation, the suspension will apply to aliens who seek to enter the United States on:
(a) An H-1B or H-2B visa, and any alien accompanying or following to join such alien;
(b) A J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counsellor, au pair, or summer work travel program, and any alien accompanying or following to join such alien; and
(c) an L visa, and any alien accompanying or following to join such alien.
The suspension 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?
Here's what the proclamation had to say in terms of exemptions:
(i) any lawful permanent resident of the United States;
(ii) any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;
(iii) any alien seeking to enter the United States to provide temporary labour or services essential to the United States food supply chain; and
(iv) any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
From our initial understanding of the new executive order, it seems that people who had valid non-immigrant H1B, L1, or J1 visas prior to the effective date of the proclamation will not be affected and neither will the petitioners who are present in the United States and who wish to renew their H, L, or J visas. Earlier speculation had also reported that the new order may terminate STEM OPT programs of foreign students. But, neither the program nor students on F-1 visas are affected as of now. It would be advisable for foreign students to not leave the United States right now given the immigration restrictions on reentry.
How Long Will It Go On?
The proclamation is set to terminate on December 31, 2020. But, these immigration restrictions can be extended beyond as there is a provision to continue the proclamation as necessary. Further, the proclamation also states that the Secretary of Homeland Security in consultation with the Secretary of State and the Secretary of Labor can recommend any modifications within 30 days of the effective date of the proclamation and every 60 days thereafter. So, keep a watch on this space for new updates.
Further Implications & The Future of Immigration
Section 5(b) of the proclamation talks about "...EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers". It essentially authorizes the Secretaries of Labor and Homeland Security to conduct investigations so that American workers are not negatively impacted by the approval of EB-2, EB-3, or H-1B visas. This has the potential to impact foreign workers on these visas and their employers tremendously in the future.
Additionally, there are reports to indicate that the current administration wants to make long-term changes to immigration policies, particularly the way H-1B visas are allotted. Approximately 85,000 H-1B visas are allotted every year on a lottery basis but that could soon change. The visas could be allotted to applicants who earn the highest wages or there could be a more restrictive definition of "speciality occupation".
Besides this latest move affecting nonimmigrant visas and the earlier ban on the processing of green cards being extended, the current administration has also placed restrictions on asylum seekers.
The Impact of the Proclamation
This move has predictably upset the tech companies and IT consulting firms who make up the majority of the employers with H-1B foreign workers. The proclamation states, the entry of these aliens “presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.” But, immigration watch groups and the companies affected present a different opinion.
American companies use H-1B visas to hire skilled foreign employees when there is a shortage of such skill among American workers. The chief reason for proposing these strict regulations is the need to preserve jobs for American workers but the unemployment rate for computer-related occupations has actually gone down from 3% in January to 2.5% in May. It is much lower than the 13.5% unemployment rate in other sectors. So, the logic doesn't hold true for the IT sector which will be the worst affected by this new order.
Further, this logic doesn't hold true to L-1 visa holders (employees of multinational companies with “specialized knowledge”) as they are merely intra-company transfers and they are already working for the company. This could potentially discourage multinational companies from doing business in America as the new order means they won't be able to transfer some of their employees from other countries to the United States.
This has a huge impact on IT consulting firms, tech companies and any other company that employs these foreign workers as it impedes access to skilled talent. If that happens, it would adversely impact the companies' existing and new business projects. These IT companies are engaged in important services during the pandemic such as providing ways for Americans to stay connected with their families, being able to work from home, offering online food delivery services and more. This, in turn, undermines the American economy's effort to restart and create jobs. This move could prove to be counterproductive to the need to revive the economy that is badly affected by the pandemic.
Advice for the Impacted
The most important question is what should the people being impacted be doing right now? If you are impacted, we strongly encourage you to contact our law offices so we can help you navigate the complex maze of this new executive order. Since the latest executive order has extended the previous April 22nd order which suspended the entry of immigrants outside of the United States and also suspended the processing of green cards, we advise such people to also seek legal counsel.
For IT consulting or tech firms, we strongly suggest getting legal help as this affects allotted H-1B visas for this year. Those petitioners who have been approved will not be able to travel and join the companies in October as expected. They will have to wait at least until the end of this year.
Such companies can also reach out to leaders in government as this potentially adversely impacts business and can even lead to job losses of American workers in such companies. There may be lawsuits challenging the legality of the proclamation as it does severely restrict immigration laws and policies.
Keep a watch on this space as we post new updates and as always don't hesitate to reach out to us for legal help.