BREAKING: Trump Immigration, Which U.S. Non-Immigrant Visas Will Be Banned?

Trump Immigration Breaking News: On Friday June 05, 2020, the Whitehouse, Department of Labor and Department of Homeland Security met and, some believe, have reached an agreement on changes that would have a devastating impact on merit-based immigration into the United States.

Utilizing the new Presidential proclamations INA 212(f) and 215, prevents entry into the U.S. of certain non-immigrants. We think that the ban will be announced and come into force around June 15th, 2020.

Which Visas will be Affected?

The ban will be temporary that will prevent entry under the following visas:

• H-1B
• H-2B
• L-1
• J-1

We initially thought the J-1 would be excluded by this move, but now we understand it will also be included.

Exemptions to the Ban

Non-immigrants that may be permitted to enter include:

• Those entering for the purposes of COVID-related medical research;
• Healthcare professionals;
• Food supply workers.

However, these exemptions are only valid if the employer has carried out certain additional recruitment efforts in the attempt to recruit American workers to fill the positions.

How Long Will the Ban Last?

We anticipate the proclamation will last for between 90 and 180 days.

Note that a 120-day ban will likely be in force after October 1st, which is when this season’s H-1B cap-based petitions will have been approved. That means companies that have passed the lottery and submitted a successful H-1B petition with a start date of October 1st, the workers would still be prevented from entering the United States under the ban.

The proclamation 212 applied to individuals entering the United States, not necessarily to those who are already in the country.

More Serious Additional Changes to Expect

However, there are also other agreements coming from the Whitehouse/DoL/DHS that will have a far more devastating impact on immigration, if they are put into effect (as none of these changes have yet been formally announced).

H-1B Workers on OES Level 1 Wage: 2-year Limit

OES Level 1 is the lowest wage band for H-1B visa holders. Any worker entering on this level of pay will be limited to a maximum 2-year stay in the country, as opposed to the regular 3-year limit.

In addition, if an affected H-1B holder seeks an extension to their visa, they will have to be on at least an OES wage level 2 to qualify.

Extending the Concept of “Joint Employment”

The recent ITServe Alliance lawsuit was won against USCIS for its policies on third-party placements, and the current administration has responded by doubling down on restrictions.

Previously, where there were some requirements on showing contracts, employment letters, and work authorization proof, it now appears that we will now see both the primary employer (petitioner) and the third-party workplace must both file Labor Condition Applications (LCAs). That change is likely to damage companies hiring H-1B workers if both entities have to go through the LCA process.

Increase to Wage Levels

We anticipate an agreement of memorandum of understanding between the DoS and DHL that would change how the four wage levels will be calculated, and that all four wage levels will increase.

We had heard that there would be a minimum wage for foreign employees under these visas, especially the H-1B, to require either a level 4 wage or $100,000 minimum pay level. It now appears that change will not be implemented, but that all four wage levels will be increased, but we cannot confirm by how much.

New Additional $20,000 Filing Fee for H-1B Petitions

The most potentially devastating move could be a possible new additional $20k filing fee for H-1Bs. This is in addition to the existing filing fee. Earlier rumors had suggested the possibility of a $75k or even $100k additional fee, but it is now looking that $20k is the more likely figure.

This is likely to act as a very real deterrent to employers and will probably be unaffordable and deter most employers in staffing agencies.

We do not know, as of yet, whether this change would be legally permissible.

Redefining Key Terms (affecting H-1B visas)

In addition, as we know that immigration policy has been aiming to make the H-1B process more challenging, and it is also possible that — in the next few weeks — the Administration may seek to redefine certain key terms that affect H-1B approvals or denials.

The key term “Specialty Occupation”, which describes the job title and duties, may be toughened up.

Additionally, changes to the definitions of “Employer”, “Employee”, and “Employer-Employee Relationship”, could lead to further restrictions.

Rescinding the H-4 Rule

We are anticipating this rule to be removed, which currently permits spouses of H-1B that already have approved I-140 forms (as part of the green card process) to get authorization to work in the U.S.

Many workers in the tech field find themselves living in very expensive parts of the country and so depend on having two incomes coming in, so this will certainly make it harder for foreign tech workers to live in the United States.

Change to Optional Practical Training (OPT)

The OPT process allows those attending U.S. Universities to get a year (or three years for those studying STEM subjects), to enter the profession associated with their majors and to work without having to obtain a visa.

Now, it seems this rule may be restricted only to those who are in the top 5%-15% of their graduating classes.

Rescinding Work Authorizations for Certain Categories

The Administration is currently looking at putting a stop to Work Authorizations for some individuals, who have left their home countries and previously been given Work Authorization cards allowing them to work. These include:

• The TPS recipients;
• Asylum recipients;
• Refugees.

It seems, at this point, that the ban would not extend to DACA.

Summary:

Clearly, if implemented, these changes will have a profound impact on the 5% of the U.S. workforce that depend on non-immigrant visas, and the companies that employ them.

We believe that this would constitute a very high degree of government intrusion into the freedom of companies to hire the staff they need, particularly at a time when many of these employers will be struggling to get back into business after the COVID-19 economic shutdown.

It is possible that certain Republican Congressmen and Senators will attempt to introduce legislation that could overrule these changes, which a Presidential Executive Order may not be able to override in turn.