On April 22, 2020, the White House released the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” This proclamation after President Trump’s single tweet banning immigration created widespread anxiety and slight panic for many immigrants. Since then, the rumors have been swirling about what will come next. Would we see a further expansion of the proclamation to nonimmigrant visas such as H-1B and L-1 visas? What about the reports that STEM OPT and even regular OPT may be suspended for F-1 students? And has the H-4 EAD run its course?
Given the level of anxiety that these rumors have created, Loke Walsh Immigration Law is issuing this update to provide you with the information we have. Please keep in mind that all of this information is still in flux and is subject to change if a Presidential Proclamation is issued.
A Presidential Proclamation impacting nonimmigrant visas could be issued as soon as June 15, 2020, and will likely be issued by the end of June. It could be in effect for as long as 90 to 180 days.
- The proclamation would bar entry to the U.S. may be for H-1B, H-2B, L-1 and J-1 for a temporary period.
- This could impact FY 2021 H-1B cap-subject cases with October 1, 2020, start dates.
- There is no consensus on what will happen for L-1s, but there could be an exemption for the L-1A visa category (intracompany transferee executives and managers).
- It is not clear which of the J-1 subcategories would be impacted, but it will likely impact the Summer Work Travel (SWT) program, camp counselor, intern and trainee programs. It is possible that J-1 physicians and research scholars may not be impacted by the proclamation.
- The proclamation will likely include exceptions, such as:
- COVID-19 related exemptions, such as for health care workers.
- Food supply related exemptions.
- For U.S. employers who conduct additional recruitment efforts.
In addition to the Presidential Proclamation, there are rumors about potential rulemakings that have been in the works impacting H-1B, OPT and H-4s. It is unclear if these will go through the notice and comment process. These include, but are not limited to the following:
- Rescission of the STEM OPT regulation which gives STEM majors an additional two-years of OPT.
- Adding requirements to the 12-month Optional Practical Training (OPT) program.
- Issuing regulations designed to strengthen the H-1B program including redefining the meaning of a specialty occupation, employer-employee relationships, and wage levels.
- Rescission of the H-4 EAD.
- Possible rescission of employment authorization for asylees, refugees, and temporary protected status (TPS) holders.
For now, the American Immigration Lawyers Association, various business and academic groups, and executives are focused on outreach to key White House officials, agency leaders, and lawmakers to underscore the harm that an expansion of the proclamation, would have on our economic recovery.
Rumors are still rumors and while we did not want to create any further anxiety, we truly believe that this is also information that must be shared. At the same time, this information should also be taken with a grain of salt. While many media outlets will report on “what they are hearing from sources,” nothing is set in stone until an actual Presidential Proclamation is issued. This means that for now, nothing has changed and no new policies are going into effect.
With so much unpredictability, we recommend that if you are in the United States, stay put and don’t leave. It is possible that any proclamation may only impact those that are outside of the United States. If you are outside of the United States, you may not be able to return during the designated period. So, stay put to avoid being stuck outside the United States.
Loke Walsh Immigration Law will closely monitor the situation and provide you with further updates.
In the meantime, please stay safe, healthy and sane during these crazy times.
