Trump Administration Considering Possible Changes To Nonimmigrant Visa Programs
President Trump issued a proclamation on April 22, 2020
restricting the ability of certain foreign nationals from using
immigrant visas (IVs) to enter the U.S. The proclamation
restricting the ability of certain foreign nationals to use their
immigrant visas to enter the U.S. was for an initial 60-day period.
Within this proclamation was a provision that required the
Secretaries of Labor and of Homeland Security to review U.S.
nonimmigrant visa programs in the U.S. and make recommendations to
limit these programs. Intense lobbying and outreach efforts are
underway by organizations and individuals representing many
industries to try to limit the impact of such a new proclamation on
U.S. nonimmigrant visa programs. FGI has provided advice and guidance in these efforts and is carefully
monitoring developments concerning potential restrictions with
respect to the H-1B, H-2B, L-1, and J-1 nonimmigrant visa
programs.
We understand that the Secretaries of Homeland Security and
Labor, along with senior White House and agency staff, briefed the
President on June 16, 20202 on the review of
nonimmigrant visa programs and their recommendations on potential
changes that could be made through executive authority or
regulatory change. Although the details of the impending extension
and expansion of the proclamation have yet to be revealed, there
are indications that the President may issue a proclamation
temporarily barring foreign nationals using an H-1B, H-2B, L-1 and
J-1 visa from entering the U.S. It is unclear, based on current
information, whether the bar would apply to L-1A nonimmigrant visa
holders, and whether it would apply to all J-1 nonimmigrant visa
subcategories, or just some. The bar would be temporary with the
possibility of renewal. The indications are that the President may
set the duration of this initial bar somewhere between 90 and 180
days. If true, this could have an impact on the start dates for
foreign nationals who are the beneficiaries of FY 2021 H-1B
cap-subject petitions.
There is also the likelihood that entry restrictions for J-1
student visa holders would affect the Summer Work Travel (SWT)
program, as well as camp counselor, intern, and trainee programs.
Exemptions are likely to be made for COVID-19 related employees
(Example: Healthcare workers) or workers involved in ensuring the
nation’s food supply. Employers who conduct additional
recruitment efforts may also be subject to an exemption as
well.
Organizations as diverse as the Business Roundtable, American
Medical Association, NASSCOM, U.S. Chamber of Commerce, Association
of American Universities, American Immigration Lawyers Association
(AILA), Compete America, and many hundreds of other individual
organizations and trade groups have communicated with the President
and his senior team, making it clear how important these
nonimmigrant visa programs are to the country, and requesting he
not impose restrictions on these nonimmigrant visa programs.
Members of Congress, including Senator Lindsey Graham, as well as
governors and other elected officials have also contacted the
President and his team, with similar requests.
Leading newspapers and other media outlets have echoed these
points. On June 17th, the Wall Street Journal
published an editorial discussing the importance of nonimmigrants
and highlighting the significant harm that a bar could impose on
the country.
The U.S. Chamber of Commerce sent a letter to the While House
asking the President to reconsider these plans, citing their
potential impact on the American economy.1 “If companies cannot hire new
H-1B workers or continue to employ their current H-1B
workers,” the letter states, “innovation and productivity
growth, particularly that which is achieved through patent
production, would suffer greatly to the detriment of our overall
economy.” The letter from the Chamber of Commerce also
expresses concern over other potential policy changes
including:
- Imposing new restrictions on hiring international students whowere educated or trained in the U.S. and several restrictionslimiting which foreign national graduates are eligible for work
authorization;
- Substantial increases in filing fees for H-1B workers, whichwould negatively impact all companies, and would be most harmful tosmall businesses that are more sensitive to drastic fee
increases;
- Curtailing work authorization eligibility for the H-4nonimmigrant spouses of H-1B nonimmigrants in the U.S., which wouldlikely exacerbate worker retention issues across multiple
industries;
- Instituting a new requirement that companies must perform labormarket tests for a service provider’s H-1B workers.
“[R]estrictive changes to the immigration system,” the
letter concludes, “will push investment and economic activity
abroad, slowing down the recovery and reducing job
creation.”
Moreover, on June 12, 2020, Americans for Prosperity and the
Libre Initiative, highly influential conservative political
advocacy groups, funded by Charles Koch and David Koch, requested
the Trump administration to reconsider any new restrictions of
temporary worker visas.2
There are reports that some organizations or individuals have
made recommendations to the Trump Administration to try to
implement the following:
- Impose a requirement that H-1B workers being paid a Level 1wage not be allowed employment authorization of more than atwo-years, and that when an H-1B worker seeks an extension of stay,
the H-1B employer must pay that individual a wage no less than a
Level 2 wage..
- Create a Memorandum of Understanding (MOU) between theDepartment of Homeland Security and the Department of Labor tochange how the Bureau of Labor Statistics will calculate its four
wage levels, with the idea that all four wage levels will increase
from their current rates.
- Impose an additional H-1B filing fee of $20,000.00 on apetitioning U.S. employer. (Note: It is unclear if this proposedadditional fee would be imposed on all H-1B petitions, including
any subsequent extension petitions, or just the initial H-1B
petition filed by the U.S. employer on behalf of the foreign
national.)
- Redefine key terms in the H-1B regulations, such as”specialty occupation,” “employer,””employee,” and “employer-employee
relationship.”
- Rescind the rule that allows H-4 spouses of H-1B workers to beeligible to apply for employment authorization if certainconditions are met.
- Impose new constraints on F-1 students pursuing OptionalPractical Training (OPT) by limiting OPT eligibility tointernational students who are in the top of their graduating
class.
- Rescind the authority to issue work authorization to variouscategories of individuals, including Temporary Protected Status(TPS) recipients, asylees, and refugees.
As of this writing, President Trump has not issued a new
proclamation impacting, as a whole, nonimmigrants in the H-1B, L-1,
F-1, and J-1 visa categories, as a follow-up to his April
22, 2020 Presidential Proclamation. It is anticipated
this follow-up proclamation will be issued soon; and it is expected
that it will be subject to immediate legal challenge by various
organizations. At this time, we advise our clients to prepare for
new restrictions to be unveiled before the end of June 2020.
Footnotes
2. Rafael Bernal. “Koch
Groups Ask White House to Spare Work Visa.” The Hill
(June 12, 2020): https://thehill.com/latino/502431-koch-groups-ask-white-house-to-spare-work-visas
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