President Trump has issued the Presidential Proclamations (PP. 10052) temporarily suspending the entry of nonimmigrant workers (H-1B, L-1, J-1, H-2B and their dependents) who are outside the U.S. without a valid visa. The suspension will last until December 31, 2020 and it may continue if the Administration finds it ‘necessary’. This Order also extended the April 22, 2020 Presidential Proclamations till December 31, 2020 (PP 10014, this PP had suspended the entry of “immigrants” (those seeking permanent residency). Current Executive Order (EO) impacts following group of individuals:
- Those OUTSIDE the U.S. on June 24, 2020 (boarding aircraft before June 24 will be permitted); and
- Do not have a valid nonimmigrant visa stamped on their passport at the time of Order; or
- Do not have an official travel documents in lieu of visa (such as a transportation letter, Advance Parole travel document, an appropriate boarding foil) that is valid on June 24, 2020 or before or issued on any date thereafter that permits him or her to travel to the U.S. and seek entry or admission.
This Proclamation impacts the following class of immigrants and nonimmigrants:
- H-1B or H-2B visa and their spouse or children accompanying or following to join;
- J-1 visa participating in internship, trainee, teacher, camp-counselor, au pair, or summer work travel program, and any their spouse or child accompanying or following to join;
- L-1 visa, and their spouse or children accompanying or following to join.
The Proclamation is riddled with errors and ambiguous terms. For example, spouse and children of Legal Permanent Resident (LPR, also known as Green Card holder) are not listed in the Section on “Suspension and Limitation”, however, it is also not included in the exempts category under the Section Scope of Suspension and Limitation on Entry Section. The EO lists those exempted immigrants from suspension or limitation on entry even though those are subject of another Executive Order.
Following are listed under exempted from the suspension or limitation on entry based on Executive Orders of April 22, 2020 (PP 10014) and June 22, 2020 (PP 10052):
- any lawful permanent resident of the United States;
- Spouse, child or an adopted child of U.S. citizen;
- nonimmigrant seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain (perhaps certain H-2Bs and all H-2A are exempted)
- nonimmigrant whose entry would be in the national interest as determined (or identified!) by the Secretary of State, the Secretary of Homeland Security, or their designees. These may include:
- those in medical field fighting Covid-19 or medical research;
- those who can potentially can contribute in facilitating the immediate and continue economic recovery of the U.S. (high-earner, business executives, etc.);
- those who are critical to the defense, law enforcement, diplomacy, or national security of the U.S.
- Asylum seekers;
- those with withheld removal;
- those protected under Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- Anyone seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join that non-citizen;
- Any one applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
- any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
- any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
- 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.
Order does not impact those nonimmigrants including those in H, L, J, who are in the U.S. or has sought or going to seek (a) Extension of Status; or (b) Change of Status.
Businesses and trade groups have maintained that the EO could prove a setback for the competitiveness of U.S. businesses and skilled workers and may prove a boon for the re-locations of jobs abroad and off-shoring. It should be noted that the H-1B workers pay U.S. taxes, help and support U.S. jobs, and have been engine of U.S. innovation and entrepreneurship.
This could prove a setback for U.S. businesses and skilled workers and may prove a boon for the further re-locations of jobs abroad and off-shoring.
Previously, there were media media reports (here, here) that President was considering to suspend entry of non-immigrant workers such as H-1B, L-1 and other through the Fall. The various trade associations, Chamber(s) of Commerce (previous letter in May) and renowned business leaders had called on President not to impose such an Order restricting work visa. One can only guess that the business community may bring legal action to challenge the Order and seek an emergency injunction.
There has been other news about the possible change in OPT/STEM training program. Any change in OPT/STEM program requires rule-making which means it could take months if not a year to change the program.
Immigration and Nationality Act (“INA”) Section 212(f) gives the President the authority to suspension of entry or impose restrictions on any non-citizens (aka aliens!) or of any class of non-citizens. However this authority is not absolute. The President would have to ‘make a finding’ that their entry will be detrimental to the interests of the “United States“; he or she will have to make a proclamation; he or she would have to set a period necessary for [in protecting interests of the “United States”] the suspension or restriction. Such an action could be in form of:
- suspension of the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or
- impose on the entry of aliens any restrictions the President may deem to be appropriate.
INA 212(f) [8 U.S. Code 1182(f)]:
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
[This is a developing story, last updated June 22, 2020. ]
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.
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