Trump H1B 2020 Update
On June 22nd, 2020, President Trump suspended the entry of certain foreign nationals under the pretense that they may threaten the US labour market. The order will be in place until at least till December 31, 2020, and targets those wishing to come to the country to work. The administration’s reasoning is that during Covid-19, foreign workers could threaten a fragile job market and prevent American citizens from getting employment. It is expected that the proclamation will prevent 525,000 workers from being able to work in the U.S by the new year.
With Covid-19, the country has seen unprecedented contraction in the workforce. According to the White House, the administration is looking to make sure that new job openings go to American workers first. This is another in a series of measures aimed at limiting and reducing the number of immigrants coming into the country.
Many groups oppose the ban for several reasons. One of the main ones is that large multinational corporations, which enjoyed the advantage of being able to recruit from a talented global playing field can no longer do so. These companies, for the time being at least, cannot compete for innovative and talented professionals and skilled workers, which could stunt innovation and development. This also means that those large corporations cannot shift executives working outside the country to the U.S. for temporary working periods.
This may also shift economic activity and growth from the United States to other countries and regions. There are many countries ahead of the U.S. in their Covid-19 recovery cycles, and professionals are being snatched up and placed out of the reach of companies within the U.S.
Who is Protected From the Trump H1B 2020 Proclamation?
Not every foreign national will be impacted by the order. The proclamation does not affect:
- Permanent residents
- Child or spouse of U.S. citizen
- Individuals who are entering the country to work temporarily to maintain the U.S. food supply chain
- Those who by entering would serve a “national interest”
F-1 and J-1 classified students are also exempt from the order. This includes students who are in the country for the OPT-STEM OPT program, the J Research Scholar program, and students who are enrolled in specialist programs.
National Interest Exemption
Someone can be designated as serving the national interest if they are declared so by the Secretary of Labor, State, or Homeland Security. To qualify, an individual must meet certain requirements. These include:
- Being essential for law enforcement, national security, or the defense of the United States
- Provide medical care to those who have been diagnosed with Covid-19 and are currently in hospital
- Work on medical research to fight Covid-19 at a U.S. facility.
- Aid in facilitating the economic recovery of the country in both the immediate and future term
- Are under the age of 18 and would no longer meet age requirements to apply for a visa because of this proclamation
If there is uncertainty around whether or not an individual is in an exempted category, then the consular office has the discretion to make that determination.
Those who are seeking asylum are not affected by the proclamation. Anyone who is seeking asylum or refugee status or seeks protection through the Convention Against Torture may still apply to enter the United States.
Who is Affected By the Proclamation?
This new proclamation also extends the previous Presidential Proclamation 10014 from April 22, 2020. Under that proclamation, the government suspended issuing green cards for those who sought to live in the U.S. Under the most recent one, these visas are suspended until at least the end of the year:
- H-1B visa, including anyone who is accompanying an individual under this visa
- H-2B visa, including anyone who is accompanying an individual under this visa
- J Visa, which covers those who are seeking entry as an intern, summer work program participant, trainee, teacher, or camp counselor. This also includes anyone who would be accompanying them
- L visa, including anyone who is accompanying an individual under this visa
Initially it seemed like au pairs in particular would be exempt from the proclamation, but that did not end up being the case. However, parents can apply for a waiver. These applications will be reviewed on a case-by-case basis and there is no guarantee on whether they will be approved.
This proclamation only applies to individuals who meet certain criteria.
These criteria are that the respective individuals:
- are outside of the United States on the date that it takes effect
- do not have a valid nonimmigrant visa at that time
- do not have another travel document besides the visa that would allow them to enter the United States. Travel documents can include boarding foil, transportation letter, or advance parole document.
Fraudulent Entry
Individuals who attempt to enter the United States through fraud or misrepresentation to avoid the restrictions of the proclamation will be targeted to be removed from the country. This includes those who enter the country from somewhere other than a legal point of entry.
Reviews
The Secretaries of State, Homeland and Labor will review this Proclamation and Proclamation 10014 after 30 days of implementation and then regularly review every 60 days while they are in effect. These reviews will determine if anything needs to be updated or changed in either proclamation.
Preventing Covid-19
There is always the concern that Covid-19 can be spread by those entering the country. To lower the risk, the Secretary of Health and Human Services will give the Secretaries of State and Homeland Security guidance on methods to prevent those with Covid-19 from getting into the country. All individuals will be subject to a test for Covid-19 before being admitted into the United States.
Further Measures Included in the Proclamation
There are also some additional measures included in the proclamation. These include:
- Those who are already in the United States or are seeking entry on an EB-2 or EB-3 immigrant visa, or H-1B nonimmigrant visa, will be prevented from seeking employment or limiting opportunities for workers from the United States. Prevention includes additional regulations and actions.
- Increase investigations for violations under Labor Condition Applications
- The issuing of increased regulations to prevent individuals who enter the country on H-1B do not harm U.S. workers. This may mean that H-1B workers in the highest income bracket may be prioritized under the numerical cap
- Preventing individuals from applying for a visa to the United States if they have not provided biometric data, such as signature, fingerprints, biometrics, and other identifying factors
- Preventing individuals who have been charged with or convicted of a criminal offense from working in the U.S. this includes those who have final orders of removal from the country, or who are eligible to be deported.
Severability Clause
The proclamation includes a severability clause. This means that if any part of the proclamation is found to be unenforceable or illegal, then the other components of the order will not be invalid as well.
Lightman Law Firm will continue to monitor any developments regarding the recent proclamations and any others that may be declared in the future. Contact us with any questions or concerns you might have about this or any other immigration situation for which you may need help. One of our expert immigration attorneys can make sure that your rights are always protected.
