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What Does the President’s Proclamation Regarding Non-Immigrant Visas Mean for Employers?

What does the President’s Proclamation Regarding Non-Immigrant Visas Mean for Employers? Background Decorative Image

On Monday afternoon, President Trump issued his “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.”  The order temporarily suspends the issuance of new H-1B visas for skilled workers, H-2B visas for temporary or seasonal unskilled workers, H-4 visas for dependents of H-1B visas, and L-1 visas which allow intracompany transfers of managers and specialized workers from their foreign affiliates. The order also suspends the issuance of J-visas for interns, trainees, teachers, camp counselors, or workers in summer work travel programs.

The suspension of H-1B visas is expected to have the greatest effect on the tech sector, although many employers also rely on H-1B visas for hiring engineers, lawyers, teachers and doctors.  Given that many professional workers are now working remotely, some employers may simply choose to have these employees work remotely in their home country, although companies should seek legal advice on potential tax and labor implications before doing so.  Employers that rely on H-2B visas for temporary labor will face a bigger challenge, following the H-2B suspension, since unskilled jobs in hospitality, construction, or landscaping are not jobs that can be done remotely, and it is not clear that Americans will be willing to take on those jobs even with rising unemployment numbers. The discontinuance of L-1 visas may discourage foreign companies from establishing businesses in the United States in the long run.

The order only applies to individuals who are outside the United States and do not have a nonimmigrant visa on the effective date.  Employees currently in the United States who are seeking extensions of their unexpired H-1B or L-1 visas are still eligible to work in the United States, as are employees with valid visas who are seeking a change of status, including for example a recent graduate doing an OPT who is seeking an H-1B.  Employees in the United States who hold these visas, however, could be denied reentry to the United States if they decide to travel abroad during the duration of the order, which is currently set to expire on December 31, 2020.

The order also does not apply to lawful permanent residents, the spouse or child of a United States citizen, H-2B holders who are seeking to enter the United States to provide temporary labor services essential to the food supply chain, or any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

Stephen Miller, President Trump’s senior advisor for policy, has made no secret of his desire to see more permanent restrictions on immigration, including a possible elimination of the OPT program and limiting H-1B visas to only the highest paid workers.  Those are changes not subject to executive order but rather would have to follow a regulatory process that takes time.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.