Trump Extends U.S. Immigration Restrictions

Under the guise of protecting American workers in the wake of COVID-19, President Trump has taken aim at immigration. 

Restriction Entry of Immigrants

In light of the current unemployment rate and overall economic state due to COVID-19, President Trump has rationalized that the entry of certain foreign nationals to the U.S. is a threat to American workers. Immigrants (Permanent Residents) are granted unrestricted employment authorization. According to President Trump, the admission of Immigrants to the U.S. poses a threat to U.S. workers in today’s scare labor market. 

On April 22, 2020, President Trump issued “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” (Proclamation 100014).

Pursuant to Proclamation 100014, the entry into the U.S. by foreign nationals as immigrants was suspended for 60 days. (Immigrants are foreign nationals who applied for permanent residence through a U.S. consulate overseas and were issued an immigrant visa.)

However, the proclamation provided the following exemptions:

• Current U.S. Permanent Residents
• Spouses or Children (under the age of 21) of U.S. Citizens
• Foreign Nationals seeking to enter the U.S. pursuant to the EB-5 Immigrant Investor Program
• Foreign Nationals seeking to enter the U.S. 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
• Prospective adoptees seeking to enter the U.S. pursuant to the IR-4 or IH-4 visa classifications
• Any member (or a spouse or child or a member) of the U.S. Armed Forces 
• Foreign Nationals seeking to enter the U.S. pursuant to a Special Immigrant Visa in the SI (foreign nationals employed by the U.S. in Iraq or Afghanistan as translators or interpreters) or SQ (Iraqis or Afghans employed by or on behalf of the U.S.) classification
• Any Foreign National whose entry would be in the national interest of the U.S.

Due to the long list of exemptions, as well as the fact that U.S. consulates have been closed for visa services and due to COVID-19, this order did not have a large impact. The order was set to expire on June 23, 2020. 

Taking it a Step Further: Restriction Entry of Nonimmigrants

As our unemployment rate reaches an all-time high as we struggle to recover from COVID-19, President Trump has turned his focus to foreign nationals who seek to enter the U.S. for temporary employment.

Under the President’s direction, the Secretary of Labor and the Secretary of Homeland Security reviewed nonimmigrant programs and came to the conclusion that the present admission of workers within several nonimmigrant visa categories poses a risk of displacing and disadvantaging U.S. workers during the current recovery of our economy.

On June 22, 2020, President Trump issued “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” This order is an amendment to Proclamation 100014 which extends the effective period to the end of 2020 and adds further restrictions.

Under the amended proclamation, entry into the U.S. by foreign nationals as immigrants will continue to be suspended until December 31, 2020 (subject to all exemptions).

Additionally, entry to the U.S. for the H-1B , H-2B, J-1, and L-1 categories is suspended until December 31, 2020.

The amended Proclamation does not apply to:

• U.S. Permanent Residents 
• A Spouse or child of a U.S. citizen
• A foreign national seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain
• A foreign national whose entry would be in the national interest

The Proclamation focuses on foreign nationals which would be new additions to U.S. labor market. Specifically, if:

• You are currently outside of the U.S. AND
• You do not already have a valid visa stamp

You will not be permitted to enter the U.S. in the H-1B , H-2B, J-1, and L-1 visa categories unless you are excluded per the list below.

The order shall not apply to the following: 

• U.S. Permanent Residents 
• A Spouse or child of a U.S. citizen
• A foreign national seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain
• A foreign national whose entry would be in the national interest

These additional restrictions will affect hundreds of thousands of foreign nationals who planned to come to the U.S. for temporary employment – as well as the U.S. employers who have spent significant resources to sponsor them. 

The H-1B visa program, which is for temporary workers in specialty occupations, is subject to an annual quota. Applicants are selected by a lottery system and the proposed U.S. employer files a petition with U.S. Citizenship and immigration Services (USCIS) to request H-1B employment authorization. For this year’s H-1B quota, the selected applicants are required to submit their H-1B petition to USCIS from June 1st to June 30th. The filing and legal fees for these petitions can be substantial, especially for large companies who seek to hire multiple workers. As a result of today’s announcement, the approval of these petitions for individuals outside of the U.S. will be meaningless as they will be restricted from entering the U.S. to begin their employment. 

Foreign National Workers Already in the U.S.

If you are a foreign national currently in the U.S. in H-1B, H-2B, L-1, or J-1 visa status, the Executive Order has no impact on your ability to remain in the U.S. Additionally if you already have a valid visa stamp in your passport, you will not be restricted from entering to the U.S. to resume your employment.

The Trump administration is working on a slew of additional changes to legal immigration via regulation. The impact of these changes may be substantial. 

BHLG is here to help you with short-term and long-term strategies to deal with the ongoing changes in immigration. 

By Rachael A. Gallagher, Esq. of Ben Hamou Benchetrit Law Group LLC