Urgent Immigration Update — News of a Damaging Proposed Immigration Proclamation on Non-Immigrant Visa Holders

Executive Summary

• The rumored Presidential proclamation would temporarily suspend entry of certain non-immigrant workers for a period that might be as long as 180 days (through the election and end of the year). This proclamation proposes to impact 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.
• The proclamation purports to announce a temporary ban on non-immigrant worker entries but will NOT announce or describe other substantive policy changes that we expect will follow in draconion regulatory proposals.
• The proclamation will have a number of exceptions, supposedly to be announced by agency guidance.
• The proclamation will likely come the last two weeks in June, but it could be as early as June 15. The April 22 proclamation temporarily suspending immigrant visa entries stated that the 50th day thereafter (June 12) would mark the expected timeline for deciding if the terms of that proclamation should be extended or modified to include non-immigrants.
• Separately, the administration envisions a series of rule-makings, beginning perhaps as early as July, on H-1B, OPT, and H-4. 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 APA requirements for a notice and comment period. Yet,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%) while 66% of H-4s work in STEM jobs, 76% of H-1Bs are for computer-related jobs or engineering, and most STEM OPT participants are likewise in low unemployment occupations.

• We believe that there will be significant exceptions to the non-immigrant visa suspension of entry, that will be announced by agency guidance (not by regulations).
• Exceptions will likely include those entering for Covid-19 related activities.
• For high-skilled workers, there will be exceptions for health care professionals, for example.
• For lesser-skilled, there will be exceptions for H-2Bs whose jobs are related to food-supply, as described in the recent temporary final rule providing flexibility for these same H-2B workers.
• Some sort of exception will likely to be devised by DOL, when an employer can document recent competitive recruitment efforts for the job being filled.
• There appears to be an intention to ensure new “cap-subject” H-1B beneficiaries who would enter October 1 ARE impacted (barred entry). So, employers, be prepared to litigate this bar!
• It is NOT clear if there is consensus that L-1A managers and executives will be included along with L-1B specialized knowledge employees.
• It is also NOT clear which J-1 categories will be included. There are 13 sub-categories of J-1 participants including foreign medical grads receiving graduate medical education (residency training) in the US, researchers and professors, K-12 teachers and various others where it would be quite surprising for there to be any suspension of entry. The categories that have garnered concern in the past concerning either protection of or displacement of US workers or compliance with rules protecting wages are the summer work and travel, camp counselor, intern and trainee categories. In particular, in May there were conversations about barring entry of summer work and travel and camp counselor J-1 visa holders.

• It is unclear if there will be new restrictions on who can participate in the 12-month OPT program. But, if so, these restrictions will likely to include requirement that OPT participants graduate at the top of their class (perhaps top 15%).

• Filing fee of $20,000 per case (you read that right).
• As a user-fee supported agency, it is very unlikely USCIS on its own authority can impose fees other than those necessary to cover the cost of adjudication. For example, right now USICS is facing a financial crunch and in order make up its $1.2 Billion shortfall USCIS knows it must get congressional approval to impose a 10% across-the-board surcharge on filings. (Notably, this agency proposal is NOT the likely outcome of making USCIS solvent as Democrats are not willing to authorize such a 10% surcharge.)
• The “Strengthening H-1B” regulation (which has been on the Unified Agenda for a long time) will be published – this is a comprehensive H-1B rule, to include redefining employer-employee relationship and redefining specialty occupation.
• One proposal says that in another regulation, separate from the Strengthening H-1B regulation, USCIS will mandate creation of a joint employer relationship by professional services firms and their clients such that both the petitioning employer and client must obtain a certified Labor Condition Application. This will not only be highly controversial but raises significant legal and practical hurdles.
• Another banner up the flagpole suggests that, separate from the Strengthening H-1B regulation, USCIS will require that employers are permitted to hire at level 1 wages but only for a 2 year increment, and thereafter the extension any proferred wage must be level 2 wage, and so on, for advancement through occupation levels.

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