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Trump Executive Order Temporary Suspends Employment-Based Visas (H-1B, H-2B, L-1, J-1)

On Monday June 22, President Donald Trump signed Presidential Proclamation 10052 suspending the issuance of visas in certain nonimmigrant (temporary) worker categories from July 24 until December 31, 2020. This extends an existing temporary ban on certain permanent visa categories under Presidential Proclamation 10014 through the end of the year, and orders government agencies to investigate possible further work visa restrictions. According to the text of the Proclamation, “under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers,” and that “the United States economy will likely require several months to return to pre-contraction economic output, and additional months to restore stable labor demand.”

Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary. Watch our video for more information on this topic.

If allowed to remain in effect, according to the White House’s own estimates, it will block approximately 525,000 people from entering the United States. Experts estimate that it will prevent approximately 20,000 employers from bringing needed workers into the United States (AILA Doc. No. 20071701).

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The Order, which took effect immediately, covers H-1B Specialty Occupation workers, H-2B Seasonal workers, L-1A Multinational Executives and Managers, L-1B Multinational Specialized Employees, and J-1 Exchange Visitors. The Order also applies to the visas normally issued to the dependents of the impacted classifications. Also, in addition to temporarily suspending temporary work visas, the Order extends the President’s existing suspension on certain Immigrant (permanent) visa categories until the end of the year. All restrictions listed in the Order could potentially be extended past December 31, 2020 if the Trump Administration can demonstrate a continued need for the restrictions. No valid visas will be revoked under the proclamation.

The Order only impacts individuals who are currently outside the United States who have not yet obtained a visa in one of the restricted classifications. The Order does not impact individuals already in the United States or those who already hold a valid visa.

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According to the Order, the restrictions were implemented to protect United States workers from foreign competition due to the impact of COVID-19 on the economy and the resulting high unemployment rate.

President Trump’s executive order did carve out certain exemptions for foreign workers seeking admission to the United States to perform work impacting COVID-19. In addition, the Order exempts many foreign scholars and educators and individuals who are of “national interest” to the United States. As many of these exemptions will be at the discretion of a consular officer, but it remains to be seen how frequently they will be issued.

In addition to restricting nonimmigrant employment-based visa issuance and extending the restrictions on certain immigrant visas, the Order also instructs The Secretary of Labor and Secretary of Homeland Security to consider further changes to existing immigration classifications. Specifically, the Order mentions EB-2 and EB-3 employment-based Permanent Resident categories and the H-1B temporary Specialty Occupation category. While the Order does not elaborate on what changes should occur, there have been reports that it could include increased prevailing wage levels, reinterpretation of what defines a “Specialty Occupation,” increased H-1B fees (potentially up to $20,000), and reinterpretation of the definition of “employer-employee relationship” when it comes to H-1B workers placed at third party job sites. However, these changes are speculative and have not yet been implemented as of the date of this writing.

Routine visas services continue to be suspended at U.S. posts worldwide as a result of the COVID pandemic, but as resources allow, embassies and consulates may continue to provide emergency and mission-critical visa services. Mission-critical immigrant visa categories include applicants who may be eligible for an exception under these presidential proclamations, such as: IR/CR1, IR/CR2, IR/IH-3, IR/IH-4, SQ, SI, certain medical professionals, and certain aliens providing temporary labor or services essential to the United States food supply chain, as well as cases involving an applicant who may age out of his or her visa category. While embassies and consulates may process these types of cases, their ability to do so may be limited by local government restrictions and available resources. In addition, an applicant’s ability to travel may be impacted by local laws, regulations, and travel restrictions.

Will the Proclamation be Overturned?

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While the newly announced restrictions will likely face legal challenges, the Trump Administration has been granted relatively broad power when it comes to restricting entry into the United States. For instance, the Supreme Court upheld President Trump’s ban on immigration from multiple predominantly Muslim countries in 2018. Therefore, petitioning employers and beneficiaries of employment-based nonimmigrant and immigrant visas should prepare for a potentially significant delay in obtaining visas. That being said, employers may still want to consider filing petitions now in anticipation of the eventual reopening of the visa process, as the Order should not impact United States Citizenship and Immigration Service (USCIS) petition processing. We may expect lawsuits filed by organizations and employers who were impacted by this ban (for example, for H-1B and H-2B petitioners who have already paid filing fees and received approvals would be impacted if the applicants have an approval notice but are still outside the United States.)

Pending Lawsuits to Challenge Presidential Proclamation

On July 17, 2020, twenty-three individual and organizational plaintiffs, including family-based immigrant visa petitioners, diversity visa lottery winners, and nonimmigrant visa sponsors, including those who want to bring in healthcare professionals from abroad to help during the pandemic, sued to prevent President Trump’s “unlawful and unconstitutional” immigration ban. Litigators from the American Immigration Lawyers Association, Justice Action Center and Innovation Law Lab, with pro bono support from Mayer Brown LLP, filed the plaintiffs’ claims as an amended complaint in Gomez v. Trump, which initially challenged President Trump’s April immigration ban. The July 17 amended complaint, filed in the U.S. District Court for the District of Columbia, marks the first legal challenge to the entirety of President Trump’s immigration ban, which has been extended through the end of 2020.