United States: Trump Administration Considering Possible Changes To Nonimmigrant Visa Programs

President Trump issued a proclamation on April 22, 2020 restricting the ability of certain foreign nationals from using immigrant visas (IVs) to enter the U.S. The proclamation restricting the ability of certain foreign nationals to use their immigrant visas to enter the U.S. was for an initial 60-day period. Within this proclamation was a provision that required the Secretaries of Labor and of Homeland Security to review U.S. nonimmigrant visa programs in the U.S. and make recommendations to limit these programs. Intense lobbying and outreach efforts are underway by organizations and individuals representing many industries to try to limit the impact of such a new proclamation on U.S. nonimmigrant visa programs. Fakhoury Global Immigration (FGI) has provided advice and guidance in these efforts and is carefully monitoring developments concerning potential restrictions with respect to the H-1B, H-2B, L-1, and J-1 nonimmigrant visa programs.

We understand that the Secretaries of Homeland Security and Labor, along with senior White House and agency staff, briefed the President on June 16^, 20202 on the review of nonimmigrant visa programs and their recommendations on potential changes that could be made through executive authority or regulatory change. Although the details of the impending extension and expansion of the proclamation have yet to be revealed, there are indications that the President may issue a proclamation temporarily barring foreign nationals using an H-1B, H-2B, L-1 and J-1 visa from entering the U.S. It is unclear, based on current information, whether the bar would apply to L-1A nonimmigrant visa holders, and whether it would apply to all J-1 nonimmigrant visa subcategories, or just some. The bar would be temporary with the possibility of renewal. The indications are that the President may set the duration of this initial bar somewhere between 90 and 180 days. If true, this could have an impact on the start dates for foreign nationals who are the beneficiaries of FY 2021 H-1B cap-subject petitions.

There is also the likelihood that entry restrictions for J-1 student visa holders would affect the Summer Work Travel (SWT) program, as well as camp counselor, intern, and trainee programs. Exemptions are likely to be made for COVID-19 related employees (Example: Healthcare workers) or workers involved in ensuring the nation's food supply. Employers who conduct additional recruitment efforts may also be subject to an exemption as well.

Organizations as diverse as the Business Roundtable, American Medical Association, NASSCOM, U.S. Chamber of Commerce, Association of American Universities, American Immigration Lawyers Association (AILA), Compete America, and many hundreds of other individual organizations and trade groups have communicated with the President and his senior team, making it clear how important these nonimmigrant visa programs are to the country, and requesting he not impose restrictions on these nonimmigrant visa programs. Members of Congress, including Senator Lindsey Graham, as well as governors and other elected officials have also contacted the President and his team, with similar requests.

Leading newspapers and other media outlets have echoed these points. On June 17^th, the Wall Street Journal published an editorial discussing the importance of nonimmigrants and highlighting the significant harm that a bar could impose on the country.

The U.S. Chamber of Commerce sent a letter to the While House asking the President to reconsider these plans, citing their potential impact on the American economy.¹ "If companies cannot hire new H-1B workers or continue to employ their current H-1B workers," the letter states, "innovation and productivity growth, particularly that which is achieved through patent production, would suffer greatly to the detriment of our overall economy." The letter from the Chamber of Commerce also expresses concern over other potential policy changes including:

• Imposing new restrictions on hiring international students who were educated or trained in the U.S. and several restrictions limiting which foreign national graduates are eligible for work authorization;
• Substantial increases in filing fees for H-1B workers, which would negatively impact all companies, and would be most harmful to small businesses that are more sensitive to drastic fee increases;
• Curtailing work authorization eligibility for the H-4 nonimmigrant spouses of H-1B nonimmigrants in the U.S., which would likely exacerbate worker retention issues across multiple industries;
• Instituting a new requirement that companies must perform labor market tests for a service provider's H-1B workers.

"[R]estrictive changes to the immigration system," the letter concludes, "will push investment and economic activity abroad, slowing down the recovery and reducing job creation."

Moreover, on June 12, 2020, Americans for Prosperity and the Libre Initiative, highly influential conservative political advocacy groups, funded by Charles Koch and David Koch, requested the Trump administration to reconsider any new restrictions of temporary worker visas.²

There are reports that some organizations or individuals have made recommendations to the Trump Administration to try to implement the following:

• Impose a requirement that H-1B workers being paid a Level 1 wage not be allowed employment authorization of more than a two-years, and that when an H-1B worker seeks an extension of stay, the H-1B employer must pay that individual a wage no less than a Level 2 wage..
• Create a Memorandum of Understanding (MOU) between the Department of Homeland Security and the Department of Labor to change how the Bureau of Labor Statistics will calculate its four wage levels, with the idea that all four wage levels will increase from their current rates.
• Impose an additional H-1B filing fee of $20,000.00 on a petitioning U.S. employer. (Note: It is unclear if this proposed additional fee would be imposed on all H-1B petitions, including any subsequent extension petitions, or just the initial H-1B petition filed by the U.S. employer on behalf of the foreign national.)
• Redefine key terms in the H-1B regulations, such as "specialty occupation," "employer," "employee," and "employer-employee relationship."
• Rescind the rule that allows H-4 spouses of H-1B workers to be eligible to apply for employment authorization if certain conditions are met.
• Impose new constraints on F-1 students pursuing Optional Practical Training (OPT) by limiting OPT eligibility to international students who are in the top of their graduating class.
• Rescind the authority to issue work authorization to various categories of individuals, including Temporary Protected Status (TPS) recipients, asylees, and refugees.

As of this writing, President Trump has not issued a new proclamation impacting, as a whole, nonimmigrants in the H-1B, L-1, F-1, and J-1 visa categories, as a follow-up to his April 22^, 2020 Presidential Proclamation. It is anticipated this follow-up proclamation will be issued soon; and it is expected that it will be subject to immediate legal challenge by various organizations. At this time, we advise our clients to prepare for new restrictions to be unveiled before the end of June 2020.

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