Immigration Proclamation: What does this mean for your foreign national workforce and hiring?

On June 22, 2020, the White House issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” which is the latest in a series of U.S. immigration restrictions purportedly tied to the COVID-19 outbreak and its impact on the American economy.

Quick Takeaways:

  • This latest immigration-focused Presidential Proclamation extends the prior Proclamation 10014 issued on April 22, 2020 that limited the entry of certain immigrants (permanent resident seekers) into the U.S. and expands the scope to include certain employment-based nonimmigrant (temporary) status seekers.
  • The nonimmigrant categories impacted are: H-1B, H-2B, L-1A, L-1B, and certain subcategories of J visas, plus any accompanying dependent categories.
  • The Proclamation restricts the entry of such nonimmigrants (who do not already possess a valid nonimmigrant visa or official travel document) into the U.S., with certain exceptions.
  • There is no immediate impact to foreign nationals who are already in the U.S. in one of the affected nonimmigrant categories.
  • Further restrictive immigration regulations are anticipated.

Summary:

Most notably to U.S. employers, the Proclamation:

  1. Extends the prior Proclamation 10014 through December 31, 2020.
  2. Suspends entry into the U.S. in the above-mentioned nonimmigrant categories for individuals who: (i) are outside of the U.S. on June 24, 2020; (ii) do not already have a respective nonimmigrant visa that is valid on June 24, 2020; and (iii) do not have an official travel document other than a visa (i.e. a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020 or issued on any date thereafter that permits him or her to travel to the U.S. and seek entry or admission.
    • Exceptions to the above apply to certain categories of individuals including lawful permanent residents; spouses and children of U.S. citizens; those providing temporary labor or services essential to the U.S. food supply chain; and those whose entry would be in the national interest.
  3. Directs the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) to, as soon as practicable, consider promulgating regulations or taking other actions to ensure that foreign nationals who have already been admitted to the U.S. or provided an immigration benefit, or who are seeking admission to the U.S. or an immigration benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa do not disadvantage American workers.

Duration:

The order is effective on June 24, 2020 and is currently set to expire on December 31, 2020, though it is subject to be extended. It is likely that this proclamation and future related regulatory actions will be challenged in court.

What this means for employers:

  • Many U.S. employers will breathe a sigh of relief to learn that their current workforce sitting in the U.S., including those already in H-1B and L-1 status are not immediately impacted.
  • Conversely, this will unquestionably impact future international hiring plans, likely limiting the ability of new international hires to obtain some of the most common U.S. visa types through at least the end of the year. Employers should work with immigration counsel to assess whether there are any other visa options available to facilitate the entry of new foreign national hires into the U.S. or, alternatively, if an exemption is available to rely upon.
  • For pending H-1B CAP petitions, there should be no impact to foreign nationals who are already in the U.S. working or studying in another status who requested that the H-1B petition be adjudicated as a “change of status.” However, for pending H-1B petitions for individuals who are currently outside of the U.S. which were filed requesting “Consular Notification” – even assuming the petition is ultimately approved, the individuals will likely not be able to obtain a visa stamp from a Consulate abroad to enter the U.S. until 2021.
  • It remains to be seen how consular officers will enforce the Proclamation and how they will exercise their discretion for approving exceptions/waivers. Similarly, the impact to Canadians is unclear, as Canadian nationals are typically “visa exempt” and generally do not require a visa in order to enter the U.S. in nonimmigrant status.
  • Importantly, employers must prepare for additional forthcoming restrictions. It is expected that the regulations called for from the DHS and DOL will include more stringent H-1B eligibility criteria and wage obligations, increased Department of Labor enforcement (such as Labor Condition Application or PERM audits), and generally heightened scrutiny on future immigration petitions – including those for extensions of a previously approved status.