On June 22, 2020, President Trump issued a second, sweeping Executive Order affecting immigration, effective immediately. It includes bad news and not-as-bad news, due to a few exceptions government agencies have confirmed since the President issued his Order. We wanted to wait a few days until we actually had some official clarifications from the State Department (DOS) and Immigration and Naturalization Services (USCIS) before commenting.
The administration states that the Order is intended to protect American workers, millions of whom have lost their jobs due to COVID-19, from what the administration called an “excess labor supply” of millions of foreign workers in all sectors of the economy. Without addressing the validity of that rational, we offer this summary of the main aspects of the Order and the effect of the Order on employers and families.
The Not-As-Bad News
The American Immigration Lawyers Association (AILA) has been working non-stop with various government agencies to clarify exactly who is covered by the Order. The following are not included:
- Canadians in some visa categories are exempt from having to obtain in advance, a visa in their passports before entering the U.S. or can apply for a visa at the border. These categories are Canadians with USCIS approved H, L, and J petitions. Canadians who need to enter the U.S. in these employment-based visa categories are exempt from the Presidential Proclamation issued on June 22, 2020. AILA has obtained this clarification from U.S. Customs and Border Patrol (CPB).
- People with valid visas. If a U.S. consulate abroad has already issued a visa to an immigrant or nonimmigrant, the person will be allowed to enter the U.S. if the visa was issued prior to the effective date of the Proclamation, June 24, 2020 at 12:01 am ET. The person will be allowed to enter on this previously-issued visa even if this will be the first entry on the visa or a subsequent entry. AILA received confirmation of this interpretation from a senior USCIS official.
- Foreign nationals who can enter after the end-date. The Executive Order notes, “This proclamation shall expire on December 31, 2020, and may be continued as necessary.” While the fact that the President can continue it indefinitely is disappointing, perhaps by the termination date, the economic conditions will improve or Congress will step in to offer curative legislation. Legislation could address the fact that many of the open positions are unlikely to be filled by American workers, for example, agricultural and hospitality jobs in remote areas.
The Bad News
This definitely affects more people than just the foreign national applying for the visa. Employers who have just spent thousands of dollars to obtain a visa for specialized H-1B employment, for example, can no longer expect to see that employee enter the U.S. to work for them until after December 31st, even though that the employer has an H-1B approval notice from USCIS. Employers, family members, and au pair programs are all affected.
These are the specific visa categories affected by the Executive Order, i.e. foreign nationals holding these visas are not allowed to enter the U.S if: they are outside the U.S.; do not have a valid visa or have not yet received one from the consulate, and; do not have a valid travel document on the date the Order was issued (We are still seeking clarification on these points):
- H-1B visa. The main visa applicant and family members who would have entered at the same time or at a later date.
- H-2B visa. The main visa applicant and family members who would have entered at the same time or at a later date.
- J-1 visa. Applicants who would enter the U.S. as interns, trainees, teachers, camp counselors, or summer work-travel programs and family members who would have entered at the same time or at a later date.
- L visa. The main visa applicant and family members who would have entered at the same time or at a later date.
Who is Generally Exempt from the Order
Fortunately, there are some foreign nationals to whom the Order will not apply:
- Legal permanent residents (green card holders).
- Spouse or child of a U.S. citizen.
- Workers essential to the food-supply chain.
- Workers essential to the national interest of the United States as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. We are awaiting more guidance on what type of work is essential to the national interest. However, it appears that foreign workers in the food-supply industry, national security and policing, medical workers and researchers treating COVID-19 patients or performing research, children at risk of losing their visas due to approaching the age of majority, and workers necessary to facilitate economic recovery, all serve the national interest based on what we know at this time. How this plays out in real-time, is yet to be discovered.
While we are learning more about the nuances of the April and June Orders and how they interact, we know for certain that both have broad-range effects leaving both employers and family members in limbo until the end of the year. We will keep you informed as we learn more.
This represents the initial post in Felhaber Larson’s newest blog, the Immigration Law Bulletin. We have taken the liberty of subscribing you in this exciting new venture due to your past work/contact with Sonseere Goldenberg, the Bulletin’s editor. You can look forward to receiving more interesting and informative posts like this on a regular basis.
As always, feel free to call for help on planning an immigration strategy during the next several months for your employees, your family members, or yourself. We are here to help!