On June 22, 2020, President Trump issued a proclamation that continues and extends the effects of his earlier Proclamation 10014 (April 22, 2020), banning the entry of many immigrants to the United States (“U.S.”). The new Proclamation now extends the ban to many categories of temporary, employment-based nonimmigrants as well, including:
- H-1B professional/specialty workers and their dependents
- H-2B temporary and seasonal workers and their dependents
- L-1 intracompany transferees and their dependents
- J-1 international exchange workers and their dependents
The new Proclamation affects thousands of U.S. employers, especially within the tech and healthcare industries, that depend on temporary workers from abroad to fill high demand positions. Of the four affected nonimmigrant categories, the H-1B is the most commonly used employment-based visa category, with 85,000 new H-1Bs issued each year to employers seeking to fill highly technical and focused occupations that require specialized education and degrees.
Key Takeaways from the New Proclamation
- It’s only temporary. The ban is currently scheduled to sunset on December 31, 2020, though it may be extended or shortened at the President’s discretion.
- Its impact may be less than news headlines suggest.
- Like the earlier announcement from April, the new Proclamation only applies to the visa issuance process and to those foreign workers who are currently abroad. Because of COVID-19 related travel restrictions that have been in place since April, most U.S. embassies and consulates continue to be closed and are not issuing new visas of any kind, including in the affected categories. As a result, it is already the case that most foreign workers who would like to apply for and obtain a new visa are currently unable to do so. The real effect of the ban will not be felt until after the U.S. embassies re-open and begin issuing visas again.
- The Proclamation only limits the issuance of new visas in the four categories. Workers who already hold current and valid nonimmigrant visas, including those in the affected categories, should still be allowed to enter the U.S. and begin/return to employment. The Proclamation is limited to the visa issuance process because the Executive Branch has limited powers to affect immigration processes and policy without first promulgating agency regulations or enacting a new statute passed by Congress.
- The Proclamation only affects those who are currently outside the U.S. Importantly, workers who are already present in the U.S. in a valid nonimmigrant status, even in one of the four categories, are not impacted, unless they choose to leave the U.S., in which case they might require issuance of new visas. The Proclamation does not impact those workers who are already employed in H-1B, H-2B, L-1, or J-1 status. It also does not affect those seeking to extend their status within the U.S. The Proclamation also does not affect those individuals who are in the process of applying to change their status from some other nonimmigrant status to one of the impacted categories. Most of the foreign nationals seeking H-1B status for the first time are already present in the U.S. as international students and recent college or university graduates. Applications to change their status based on the FY2021 H-1B visa lottery are not currently included in the Proclamation. Applications to change nonimmigrant status to H-1B or one of the other categories should still be adjudicated (and hopefully approved) by U.S. Citizenship and Immigration Services (“USCIS”) as normal.
- The Proclamation does not include many of the other commonly used employment-based nonimmigrant categories, such as TN for citizens of Canada and Mexico under NAFTA. E-1 Treaty Traders, E-2 Treaty Investors, E-3 Australian Professional Workers, R-1 Religious Workers, P-1 Professional Athletes, and O-1 Workers of Extraordinary Ability are also not included in the ban.
- Because the Proclamation only refers to foreign workers who require visas, it may still be possible for Canadians who do not require visas to enter the U.S. in one of the affected categories. At the time of this writing, U.S. Customs and Border Protection has not yet issued official guidance, and adjudications at the various Ports of Entry may vary. While Canadians who do not require visas appear to be exempt from the Proclamation based on its plain language, employers should check with their immigration counsel and with officials at the intended Port of Entry before attempting to send an employee to the border to apply for admission in one of the affected categories.
- Importantly, the H-2A visa category for seasonal agricultural workers is not included in the visa ban. Also, although the H-2B visa category is included and is commonly used by employers within the agriculture and forest products industries, the Proclamation explicitly exempts those individuals who will be employed in jobs that “support the food supply chain,” leaving open a small window for some qualifying H-2B visa applicants.
- Another exemption includes individuals whose entry “would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.” The Proclamation defines “national interest” as including those nonimmigrant workers who are:
- Critical to the defense, law enforcement, diplomacy, or national security of the United States;
- Involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
- Involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
- Necessary to facilitate the immediate and continued economic recovery of the United States; or
- Children who would age out of eligibility for a visa because of this Proclamation or Proclamation 10014.
- Unfortunately, although the Proclamation exempts medical care providers and researchers who are working directly to support COVID-19 patients and research, foreign medical workers including physicians, nurses, and researchers who are not directly involved in COVID-19 related care are still banned from obtaining visas in the four categories.
- The Proclamation also includes “additional [enforcement] measures” the Administration would like to see implemented to limit immigration and its potential impact on U.S. workers. While most of the proposed measures are aspirational, one proposal should be of particular concern to any employer that employs H-1B specialty workers. Specifically, the Proclamation directs USCIS as well as the U.S. Department of Labor (“DOL”) to “undertake investigations of Labor Condition Application (‘LCA’) violations pursuant to Immigration and Nationality Act Section 212(n)(G)(i).” The H-1B category is the most commonly used employment-based nonimmigrant visa category as well as the most highly regulated. H-1B employers must:
- Offer to pay, and in fact pay, the higher of either the prevailing wage as determined by DOL or the actual wage paid to all similarly situated U.S. workers. Employers may not bench, furlough, lay off, or otherwise cease to pay H-1B workers, even if unproductive (except as otherwise permitted under federal or state employment law), unless the company first notifies DOL and USCIS. Employers that fail to pay H-1B workers the required wage may be subject to DOL enforcement activities and be liable for back wages as well as penalties.
- Continue to employ H-1B workers and pay the required wage unless and until the individual’s authorized period of stay and employment authorization expires, or, if the employment relationship is terminated early by either the employer or the H-1B employee, the employer must “perfect” the termination by notifying DOL and withdrawing any certified LCA and by notifying USCIS and withdrawing the approved I-129 H-1B petition. If the employment relationship is terminated early by the employer, it must also offer to pay the employee the “reasonable cost” of their return airfare to their last country of residence. The compensation offered need only cover the cost of coach class airfare for the employee and does not need to also cover the cost of baggage or any dependents. Failure to “perfect” the termination by notifying the two agencies and offering to pay the reasonable cost of return airfare (if required) can result in an ongoing obligation to continue to pay the H-1B worker the required wage, including back wages, even long after the employment relationship was otherwise terminated. With many employers seeking to lay off or terminate H-1B workers along with the U.S. workforce, it is important to seek counsel and ensure the termination is “perfected” for immigration purposes.
- Maintain a complete and correct “Public Access File” per the requirements of 20 CFR § 655 Subparts H & I. To sponsor an H-1B worker, employers must first file an LCA with the DOL that attests the company will pay the required wage and that the H-1B employment will not adversely affect the employment of similarly situated U.S. workers. A copy of the certified LCA must be maintained by the employer along with other required documents in a Public Access File that must be maintained by the sponsoring employer during the validity of the LCA and for an additional year thereafter. By law, the Public Access File and its required contents must be made available to DOL or any member of the public that requests it (including any company employees). Failure to maintain or provide a copy of the Public Access File when required to do so is a violation and can result in penalties. DOL has been increasing the number and frequency of its audit activities. H-1B employers should consult with their immigration counsel now to ensure their Public Access Files are correct, complete, and ready for disclosure in the event DOL conducts an audit or a member of the public asks to see them.
- Ensure that H-1B employees only work from authorized locations that are covered by certified LCAs. Do not transfer any H-1B worker to any other work location, including, for example, to an offsite location with a third party client/contractor or to the employee’s home due to COVID-19 without first checking with immigration counsel. H-1B employment is tied to the specific job, offered salary and work address(es) listed on the LCA that was submitted and certified by DOL and the I-129 H-1B submitted and approved by USCIS. Normally, an H-1B worker may not work at another address, including from the worker’s own home, without first obtaining a new certified LCA from DOL and, when necessary, filing an amended petition with USCIS to notify it of a change in address. However, a new LCA and amended petition may not be necessary if the new work address is located within the same Metropolitan Service Area (“MSA”) as the original address listed on the certified LCA. If no new LCA is required, then it may also not be necessary to file an amended petition with USCIS. Even if a new LCA is not required because the new work address is located within the same MSA, it may still be necessary to complete a new 10-day period of public posting at the new work location as required by 20 CFR § 655 Subparts H & I. For example, an employer based in Portland has a certified LCA and approved petition for an H-1B worker listing the company’s business address in Portland as the work location. The employer has been forced to temporarily close its physical office and has directed all of its employees (including the H-1B worker) to work from home due to COVID-19 related health restrictions. The employee’s home is located in Beaverton. In this case (and assuming there are no other changes to the terms and conditions of employment, such as a reduction in pay or hours), it should not be necessary to file a new LCA with DOL or an amended petition with USCIS because the new work location is still within the same MSA as listed on the certified LCA. However, as absurd as it sounds, it would still be necessary to have the employee post two copies of the certified LCA (or other acceptable form of notice) in two conspicuous and unobstructed work locations in the employee’s home for 10 days per the normal public notice rule. Failure to obtain a new certified LCA and file an amended H-1B petition when required can lead to severe consequences, including penalties against the employer, and can jeopardize the H-1B worker’s immigration status and work authorization. Failure to complete a new public posting of an already certified LCA at a new work location (even if at the employee’s home) can also lead to consequences for both the employer and H-1B employee. With so many employees now working from home due to COVID-19, it would be easy for an H-1B employer to inadvertently run afoul of the LCA requirements. The Administration clearly knows this and has directed DOL and USCIS to increase their compliance auditing activities and to penalize employers when appropriate.
- Consult with experienced immigration counsel now to review your company’s H-1B records and ensure they are ready for . Also consult with immigration counsel before moving any H-1B worker to a new location to determine if a new LCA and H-1B petition will be necessary and to ensure that all required paperwork is in order.
Schwabe has a robust immigration practice led by a Chambers recognized immigration attorney who specializes in employment-based immigration. For additional information, please contact Bradley Maier.
June 22, 2020 Presidential Proclamation Temporarily Banning the Entry of Certain Non-Immigrants
Summary of the June 22, 2020 Proclamation published by the American Immigration Lawyers Association and the American Immigration Council
USCIS Guidance on when to file an amended petition due to a change in work location
DOL FAQs related to LCA place of employment, change in work location, LCA record keeping requirements, and LCA public notice requirements
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