Executive Order Restricts Employment-Based Immigration

On June 22, 2020, President Donald Trump issued an executive order suspending the entry of individuals to the U.S. from several nonimmigrant visa categories, effective 12:01 a.m. ET on June 24, 2020 and ending December 31, 2020. This order may be continued as deemed necessary and modifications may be made within 30 days and subsequently every 60 days.

The visas affected by this executive order include:

• H-1B or H-2B visas, and any family/foreign nationals that would accompany the principal visa holder
• J visas (specifically those participating in an intern, trainee, teacher, camp counselor, au pair or summer work travel program) and any family/foreign nationals that would accompany the principal visa holder
• L visas, and any family/foreign nationals that would accompany the principal visa holder

This suspension applies only to those who meet all of the following criteria:

• Are outside the United States as of June 24
• Do not have a valid nonimmigrant visa as of June 24 AND
• Do not have an official travel document other than a visa valid as of June 24

Exceptions to this order include:

• Any lawful permanent resident of the United States
• The spouses or children of U.S. citizens
• Those seeking to provide temporary labor or services essential to the U.S. food supply chain
• Those whose entry would be in the national interest (as determined by the Secretaries of State and Homeland Security)

A consular officer will determine whether a nonimmigrant visa applicant is eligible for one of the above exceptions. The Secretaries of State, Labor and Homeland Security will define standards for those who shall be admitted in the “national interest,” including those that are critical to defense and the national security of the U.S., are involved with providing medical care to those hospitalized with COVID-19, are involved with providing medical research at U.S. facilities to help fight COVID-19, or are “necessary to facilitate the immediate and continued economic recovery of the United States.”

The order recommends that the Secretary of Health and Human Services, through the Director of the Centers for Disease Control and Prevention, provide guidance as necessary to the Secretaries of State and Homeland Security regarding implementing measures to reduce the risk that those seeking admission to the U.S. may introduce, spread or transmit COVID-19.

The order also recommends that the Secretary of Labor, alongside the Secretary of Homeland Security, consider additional regulations and/or action to ensure that foreign nationals who have been admitted, provided a benefit, or are seeking admission and/or benefits (pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa) do not disadvantage U.S. workers.

This new order does not impact workers currently in the U.S. who are submitting petitions to U.S. Citizenship and Immigration Services (USCIS) for extensions, amendments or changes of employer. It will furthermore not impact individuals who have filed cap-subject H-1B petitions that are filed as “change of status” petitions.

Note that the prior executive order affecting individuals seeking employment-based immigrant visas has been extended through this new order. Furthermore, the other travel bans affecting travelers to the U.S. from most European countries, Brazil, Iran and China remain in effect. Consular closures and local COVID-19-related restrictions can further complicate U.S. entry plans.

Additional guidance and information from the Department of Homeland Security and the Department of State are expected to be issued in the weeks to come. The White House issued a fact sheet that provides insight into the type of H-1B program changes the administration would like to implement via the Department of Labor and the Department of Homeland Security, including requiring the highest prevailing wages for H-1B workers and potentially requiring employers to demonstrate that no qualified U.S. workers are available to perform the job for which an H-1B worker is sought.

Faegre Drinker will issue ongoing updates as more information is made available on U.S. immigration restrictions, litigation and proposed legislation.