Introduction
As previously reported, President Trump signed the Proclamation Suspending Entry of Immigrants Who Present Risk to the US Labor Market During the Economic Recovery Following the COVID-19 Outbreak (the “Immigrant Proclamation”) on April 22, 2020 The Immigrant Proclamation temporarily suspended the entry of immigrants (i.e., permanent resident applicants) to the United States for a period of 60 days. While it did not affect nonimmigrants (i.e., workers, students, etc.), it stated that nonimmigrant programs would also be reviewed and that additional restrictions could be implemented in the next 30 days to stimulate the United States economy and to ensure the prioritization, hiring and employment of United States workers.
President Trump is expected to issue a Presidential Proclamation some time during the week of June 15, 2020, which will prohibit the entry of certain nonimmigrant workers to the United States (the “Nonimmigrant Proclamation”). A discussion of the proposed Nonimmigrant Proclamation appears below.
Temporary Ban on the Entry of Certain Nonimmigrant Categories
It appears as though the proposed Nonimmigrant Proclamation will temporarily ban the entry of L-1, H-1B, H-2B, and J-1 nonimmigrants. However, it is not expected to affect other nonimmigrant categories, such as: (a) TN professionals under the North American Free Traded Agreement, (b) E-1 treaty traders, (c) E-2 treaty investors, or (d) O-1 aliens of extraordinary ability.
The Nonimmigrant Proclamation is expected to also list certain exemptions, which should include the following:
- An exemption for workers who are involved in COVID-19 related medical research, healthcare professionals, and food supply workers;
- An exemption for workers, if the employer has performed certain additional recruitment efforts to locate U.S. workers to fill the proposed positions, which were ultimately unsuccessful; and
- An exemption for workers whose entry is in the national interest.
The duration of the temporary ban will likely be between 90 and 180 days, with a 120-day duration being most likely.
The Nonimmigrant Proclamation will announce the temporary ban but will not describe other substantive policy changes that are expected to follow in the form of regulatory amendments. These subsequent regulatory changes are expected to adversely affect: (a) H-1Bs, (b) employment authorizations for H-4 spouses, (c) Optional Practical Training (“OPT”) for F-1 students, (d) OPT extensions for F-1 STEM graduates, and (e) employment authorizations for Temporary Protected Status recipients, Asylees, and Refugees.
Implications of the Nonimmigrant Proclamation
No details are currently available regarding the expected scope of the proposed Nonimmigrant Proclamation. For example, although it is expected to affect L-1 nonimmigrants, there is no way to know if it will affect L-1A executives and managers as well as L-1B specialized knowledge workers. However, given the fact that most multinational corporations doing business in the United States transfer their executives and managers to the United States as L-1A nonimmigrants, if the Nonimmigrant Proclamation does end up applying to L-1As, we may see corporations push for an exemption for these executives and managers.
Assuming that the proposed Nonimmigrant Proclamation will be worded in a manner similar to the Immigrant Proclamation, it should only suspend the entry of nonimmigrants under the above categories. This means that any L-1, H-1B, H-2B, and J-1 nonimmigrants who are already in the United States should be permitted to remain until their status expires, as long as they do not travel abroad and attempt to re-enter the United States while the Nonimmigrant Proclamation is in force. In addition, it should still be possible for these nonimmigrants to extend their status within the United States while the Nonimmigrant Proclamation is in force.
Conclusion
In summary, once the Nonimmigrant Proclamation has been issued, it is expected to temporarily suspend the entry of L-1 (L-1As may or may not be included), H-1B, H-2B, and J-1 nonimmigrants, likely for a period of 120 days. In addition, if the Nonimmigrant Proclamation only suspends the entry of L-1, H-1B, H-2B, and J-1 nonimmigrants, it should still permit them to remain (and possibly even extend their status) if they are already in the United States when the Nonimmigrant Proclamation comes into force.
Of course, the final details of the Nonimmigrant Proclamation cannot be confirmed until President Trump has actually issued it, some time this week. Further details will be provided once this has occurred.
