Editor’s note: This sponsored post by Charles Kuck is published as part of Kuck Baxter’s annual advertising package with Global Atlanta. It first appeared on immigration.net and has been edited for length.
Weeks ago, we began advising our clients to return to the United States immediately, seeing clear cues from President Trump that he would soon clamp down further on legal immigration.
We’d hoped that we were wrong, that he wouldn’t use the COVID-19 pandemic as an excuse to stop legal employment- and family-based immigration to the United States.
Unfortunately for our clients and for the U.S. economy at large, he stayed true to what he’d been signaling: The president issued a new proclamation on June 22, expanding the scope of his ongoing effort to keep foreign workers out and halting several types of legal, non-immigrant workers from coming to the United States.
This came shortly after the Supreme Court dealt a blow to his effort to roll back the Deferred Action for Childhood Arrivals, saying the administration had not followed the proper procedural rules for rescinding the order that protects undocumented students and workers brought to the U.S. as children.
I believe the president’s increasingly strident moves are evidence that this nativist administration is coming to grips with the idea that it will not be in power come January.
In my view, Mr. Trump is making a last-gasp, election-year effort to pass every piece of anti-legal immigration regulation he can, using the guise of protecting the American worker. The newest example of this is DHS’s ordering all foreign students to leave the U.S. immediately if their universities and colleges are going back to school only online this fall (because who does not like going to an online class at 2 a.m. in China), but the most immediate damage is done by the proclamation issued on June 22.
This latest proclamation went into effect at midnight June 24. It suspends the entry of certain non-immigrant workers until Dec. 31 and impacts high-skilled individuals outside the U.S. seeking to enter on H-1B and L-1 visas, as well as H-2B temporary seasonal workers and certain J-1 exchange visitor participants. I’ll explain each below.
Trump also extended his April 24 proclamation to bar the immigration of parents, children and siblings of U.S. citizens who have been waiting in line for decades to immigrate to the United States.
Additionally, legal immigrants sponsored by U.S. employers are also barred from entering the U.S. through the end of 2020, even though the employers have proven that there are no qualified, willing and able U.S. workers for their jobs.
The ban on entry applies to any foreign national who was outside the United States on June 24, who does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and 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 June 24 or is issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
The proclamation asks the Department of Homeland Security to change regulations to take work permits away from those seeking relief in removal proceedings, and from those who cannot be deported.
DHS is also instructed to make it harder to obtain H-1B visas. The Department of Labor is instructed to make obtaining employment-based visas more difficult and to conduct intensive investigations or employers who abuse the legal immigration system.
The proclamation does include a number of exceptions for those currently outside the United States or who travel during this period, including:
- Any lawful permanent resident of the United States;
- Any foreign national who is the spouse or child of a United States citizen;
- Any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- Any foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security
Remember that the administration envisions a series of rule-makings beginning this month on H-1B, Optional Practical Training or OPT, and H-4 visas which apply to immediate family members of H-1B visa holders.
In all likelihood, these will need to be notice and comment rule-makings, but it is unclear if the administration will try to seek a good-cause exception to Administrative Procedure Act requirements for a notice and comment period.
As its core, though, relying on unemployed Americans as the urgency to, for example, rescind STEM OPT or H-4 work authorization, seems misplaced given that computer-related occupational unemployment remains very low (2.8 percent) while 66 percent of H-4s work in STEM jobs, 76 percent of H-1Bs are for computer-related jobs or engineering, and most STEM OPT participants are likewise in low-unemployment occupations.
It is clear from the order that there will also likely be carveouts for high-skilled foreign workers whose jobs are essential to fighting COVID-19, from a research or medical perspective, as well as those H-2B workers whose jobs are related to the food supply.
Given that the order says agency guidance, not regulation, will govern the procedure for documenting these exceptions, the Department of Labor will probably be tasked with handling it.
Troublingly, there appears to be an intent to ensure new “cap-subject” H-1B beneficiaries who would enter October 1 are barred entry, so employers should be prepared to litigate this bar. The rumored regulations changing the H-1B requirements remain in play, including a new filing fee of $20,000 per case (you read that right), which is likely an effort to plug a budget shortfall that runs afoul of current fee rules.
Also troublingly for those economies relying on foreign investment, L visa bar INCLUDES L-1A managers and executives, along with L-1B specialized knowledge employees. For major foreign-owned employers, like Kubota, Mercedes, BMW, Kia, and others, this has a massive impact on their ongoing operations and future investment in the United States.
The J-1 categories affected are interns, trainees, teachers, camp counselors, au pairs and summer work travel program attendees, and their spouses and children. School districts should get ready for a major problem in staffing their classes this fall.
Student visa holders (F-1) and universities appear to have escaped unscathed in the particular proclamation, but we continue to believe that there will be a regulation changing post-completion OPT and STEM OPT extension to solely a 12-month OPT program by rescinding the STEM OPT regulation, which in March 2016 allowed for those in STEM fields to get three years of status.
Separately, the Trump Administration has announced plans to essentially eliminate the work authorization for asylum seekers.
With regard to individuals who enter the U.S. as refugees and those that are granted asylum, it seems the United States is actually required to provide work authorization based on the 1967 Geneva Protocol, to which the U.S. is a signatory.
Again, each of these changes has been planned by anti-immigration forces within the administration since inception. None of these were created out of whole cloth.
The fact that they are introducing them now, under the cover of COVID-19, makes it clear that Mr. Trump sees his days in power as numbered. Unfortunately, that means toying with the lives of foreign workers who contribute greatly to the U.S. economy for political purposes, sowing even more confusion and discord at a time of strife for our nation.
Charles H. Kuck is an adjunct law professor at Emory University and managing partner at Kuck Baxter Immigration LLC in Atlanta, which is a sponsor of Global Atlanta’s immigration coverage. Email him at ckuck@immigration.net.
