June 9, 2020 update:
Regarding the possible extension of the April 22, 2020 Proclamation to include other high-tech visas or F-1 OPT, rumors are that a new travel and/or visa issuance ban for certain visa types (possibly new H-1Bs, L-1s, and J-1s) may be announced the week of June 15, and that other regulatory changes (which must go through Notice and Comment periods) may be announced in July. The situation is very fluid, nothing is confirmed, and we will post here if and when there are more details.
May 29, 2020 update:
On May 29, 2020, the administration issued a Proclamation banning certain Chinese graduate students and researchers. There is already a Chinese travel ban in effect, and the Proclamation does not affect anyone already in the United States.
NAFSA summary of the new ban: https://www.nafsa.org/regulatory-information/proclamation-suspending-entry-chinese-students-and-researchers-connected-prc
Original post:
As reported here previously, the Presidential Proclamation issued on April 22, 2020 (“the Proclamation”) banned, for 60 days, the issuance of most immigrant visas – that is, U.S. permanent residence (green card) visas – by U.S. Embassies and Consulates outside the U.S.[1] U.S. permanent residence (green card)-related applications made to USCIS inside the U.S., including PERMs, I-140s, and I-485 adjustment-of-status applications are not affected by the Proclamation. Nor are nonimmigrant visas (whether sought from inside or outside the U.S.) currently affected by the Proclamation; however, a troubling part of the Proclamation calls for a future “review of nonimmigrant programs” (i.e., temporary visas such as H-1Bs, L-1s, F-1s, and others), to occur by May 22, 2020. (At the time of the Proclamation, it was widely reported in the press that the exclusion of nonimmigrants from the Proclamation’s immediate ban was due to strong objections from the business community. It is possible that such objections might also prevent future changes suggested as a result of the review occurring by May 22nd, but that remains to be seen.)
The Proclamation cites statutes, in particular Section 212(f) of the Immigration and Nationality Act, which provides the President with power to suspend or restrict “entry” of immigrants and nonimmigrants if the President determines that such entry would be detrimental to U.S. interests, as giving the President authority to take the actions described in the Proclamation. It may be a matter of legal debate whether the President’s power to restrict “entry” is limited to applicants coming from abroad, or would apply to applicants in the U.S., but it is interesting to note that the Proclamation’s existing restrictions, in the immigrant / green card domain, addresses only applicants coming from abroad. It is possible (though hardly certain) that any upcoming nonimmigrant visa restrictions might similarly be limited to nonimmigrants applying for visas from abroad and making entries from abroad.
It should be noted that heightened review and restriction of employment-related nonimmigrant visas already occurs under the Buy American Hire American (“BAHA”) Executive Order of April 18, 2017, which directed the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to, among other things: (1) suggest reforms to help “promote the proper functioning of the H-1B visa program," including ensuring that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries; and (2) propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of the U.S. immigration system, "including through the prevention of fraud or abuse." Since April 2017, nonimmigrant visa petitions and applications have been heavily scrutinized under BAHA; denials and “Requests for Evidence” (RFEs) have skyrocketed; and additional impediments (such as the recent rule changes on “public charge”) have been added to existing applications.
In addition to the BAHA-related restrictions on nonimmigrant work visas over the last three years, and the Proclamation of April 22, 2020 requiring a further review of nonimmigrant programs by May 22, 2020, four U.S. senators issued a letter to President Trump on May 7, 2020, calling for suspension of the issuance of H-1Bs, H-2Bs, EB-5s (immigrant investors), and F-1 OPT work authorization.
In conclusion, there are several indications that the U.S.’s work-related nonimmigrant visa programs may face changes in the near future, but it is not clear at this time what such changes may be, or whether such changes would be limited to applicants who are making their visa applications from outside the U.S. (At present, applications from outside the U.S. are rare because U.S. Embassies and Consulates worldwide are currently closed and not issuing visas due to the ongoing COVID-19 pandemic.) We will continue to monitor developments and report them on our blog.
[1] The immigrant visa suspension, if extended, may eventually be devastating to beneficiaries of the Diversity Visa (DV) Program – the annual green card lottery – because the majority of DV applicants apply from outside the U.S., and DV immigrant visas (unlike other categories) must be issued no later than September 30, 2020, when the government fiscal year ends. They do not carry over into a subsequent fiscal year.
© Jewell Stewart & Pratt PC 2020