Tag: Immigration Updates & FAQs

The U.S. Department of State and   U.S. Customs and Border Protection (CBP) and have provided initial guidance clarifying the scope of Donald Trump’s June 22 proclamation banning the entry of certain H, L and J visa holders.

According to Department of State FAQs posted in a Twitter thread:

• The proclamation does not revoke visas that are valid on June 24, 2020.   Foreign nationals with H, L, and J visas valid on June 24 (and their dependent spouses and children with valid visas)  may continue to be admitted to the U.S. during the visa validity period. This includes foreign nationals who have not yet entered the U.S. on their previously issued valid visas.
• Renewal of H, L and J visas is subject to the proclamation’s restrictions. If a foreign national’s visa is valid on June 24, but subsequently expires, the individual will not  be permitted to renew the visa  and enter the U.S. while the proclamation is in effect.
• Foreign nationals who are in the U.S. in valid H, L or J status, but whose passport visas have expired or will expire before December 31, 2020, may remain in the U.S. and extend their status as otherwise  permitted; however, if  these individuals depart the U.S., they may not be readmitted to the U.S. while the proclamation remains in effect.
• Beneficiaries of approved H or L petitions or the covered J programs who were waiting for a visa appointment and who did not have a valid visa on June 24 will not be permitted to obtain a  visa and enter the U.S. while the proclamation is in effect, despite having an approved petition.
• Physicians applying for J visas are not subject to the proclamation. By the terms of the proclamation, J-1 research scholars should also not be subject to the ban.

The American Immigration Lawyers Association (AILA) has also reported that CBP Headquarters  confirmed that Canadian citizens are not subject to the proclamation. (Canadians are not generally required to obtain visas, and as a result, are exempt from the proclamation.) In view of this exemption:

• Canadian citizens entering the U.S. in H, L or J status may continue to enter the U.S. in H, L or J status, even as first time applicants for admission.
• Canadian citizens may continue to  renew H, L and J status as otherwise permitted, and may be readmitted to the U.S. after international travel.
• Dependent spouses and children who are Canadian citizens are exempt from the proclamation and  may continue to be admitted to the U.S. in H, L or J status. However, this only applies to Canadian citizens. Dependent spouses and children of Canadian citizens who are not themselves Canadian citizens do require a valid visa to enter the U.S. and are covered by the proclamation.

Background

On June 22, 2020 the Trump Administration issued the proclamation banning the entry of certain H, L and J visa holders, and extending a prior ban on the admission of individuals entering with immigrant visas. The ban took effect on  June 24, 2020 and will remain in place until at least December 31, 2020.  Additional information about the ban is available at Gibney.  The June 22 proclamation banning entry of certain nonimmigrant workers  does not apply to the B, E, F, O, P and TN visa categories. However, the coronavirus-related travel bans generally restricting entry to the U.S. from Europe, the United Kingdom and Ireland, China, Iran, and

Brazil, as well as the land border restrictions at the U.S., Canadian and Mexican borders, remain in place.

For additional information, please contact your designated Gibney representative.

On June 22, 2020, President Trump issued a Proclamation suspending entry to the U.S. of foreign nationals in certain nonimmigrant (temporary) visa classifications. The entry ban takes effect June 24, 2020 at 12:01 a.m. Eastern Daylight Time.

WHO IS IMPACTED BY THE BAN

Individuals in the following visa categories who are outside of the U.S. on June 24, 2020, and who do not hold a valid nonimmigrant visa or travel document (transportation letter, boarding foil, or advance parole document) are banned from entering the U.S.:

• H-1B professional workers;
• H-2B temporary non-agricultural workers;
• J-1 exchange visitors participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program;
• L-1 intracompany transferees;
• Dependent spouses and children of these visa holders.

WHO IS EXEMPT FROM THE BAN

The ban does not apply to

• any lawful permanent resident of the United States;
• any foreign national who is the spouse or child of a United States citizen;
• any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain;
• any foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Consular officers will have the discretion to determine if a foreign national falls within one of the exemptions outlined above.

AVAILABILTY OF WAIVERS

The Secretaries of State, Labor and Homeland Security are authorized to define categories of exempted foreign nationals whose work is in the national interest and establish waiver standards. This may include foreign nationals whose work

• is deemed critical to defense, law enforcement, diplomacy or the national security of the U.S.;
• involves providing medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• involves providing medical research at U.S. facilities aimed at combatting COVID-19;
• is necessary to facilitate the immediate and continued economic recovery of the U.S.

The administration has offered few waivers in connection with its other bans, and we expect waivers will be very limited and difficult to secure.

DURATION OF BAN

The entry ban will remain in effect until December 31, 2020, and may be extended. The Secretary of Homeland Security is charged with consulting with the Secretaries of State and Labor to recommend modifications as deemed appropriate.

ADDITIONAL RESTRICTIONS AIMED AT FOREIGN WORKERS IN THE U.S.

The proclamation directs the Department of Homeland Security to consider other unspecified action addressing the H-1B program and employment-based green card sponsorship for professional and skilled workers, to ensure that U.S. workers are not disadvantaged by foreign nationals already in the U.S. We expect publication of regulations that impact foreign workers in the U.S. who are beneficiaries of these programs. The proclamation also directs the Department of Labor to undertake investigations to ensure employers hiring H-1B workers comply with all applicable rules and regulations.

CONTINUATION OF BAN BLOCKING ADMISSION OF IMMIGRANTS

The proclamation also continues the President’s April 2020 Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak through December 31, 2020. The April proclamation suspends the entry of select classes of immigrants currently outside the U.S. seeking to enter the U.S. as permanent residents with a new immigrant visa. Additional information about the ban on the admission of immigrants is available here.

IMPACT ON EMPLOYERS

• U.S. companies, hospitals, universities and small businesses that seek to employ high-skilled and temporary workers, as well as multinational corporations that seek to leverage the expertise of employees from overseas affiliate offices, are now severely restricted in their ability to do so. Having already invested resources in recruiting and sponsoring foreign nationals for work visas, many employers will now find that, despite having approved petitions, sponsored individuals may be unable to secure visas and enter the United States, further disrupting workforce planning and business operations.
• U.S. employers that sponsor H-1B visas should expect increased onsite investigations by the Department of Labor and Department of Homeland Security.
• U.S. employers should expect regulatory proposals that further restrict or eliminate other work visas, impacting foreign national workers already in the U.S. These could include additional restrictive measures associated with qualifying an individual for an H-1B or L-1 visa, elimination of the Optional Practical Training employment program for foreign students, elimination of H-4 work authorization for the spouses of certain H-1B workers, as well as increased filing fees, among other measures.

While the proclamation’s stated rationale is to protect U.S. workers from the economic downturn stemming from the coronavirus pandemic, no empirical evidence was offered demonstrating that employing individuals in any of these visas classifications takes jobs from U.S. workers or harms the economy.  In the weeks leading up the ban, members of Congress, employers, business groups, and universities made contrary arguments, voicing their strong opposition and calling the proposal detrimental to the economy. Legal challenges to the ban are expected.

Gibney will continue to monitor developments and provide updates as they become available. If you have questions or need specific legal advice, please contact your Gibney representative.

The  United States-Mexico-Canada Agreement (USMCA) will take effect on July 1, 2020.  The USMCA replaces the North American Free Trade Agreement (NAFTA), which expires on June 30, 2020.

From an immigration perspective, the USMCA represents a repackaging of NAFTA. The USMCA retains key immigration benefits of NAFTA, including provisions allowing for the temporary entry without quotas of Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. With respect to Professional workers, USMCA retains all of the occupations previously designated as eligible for the NAFTA “TN” visa, though the new agreement does not add any additional occupations.

Implementation of the USMCA does not alter the temporary travel restrictions currently in effect at the U.S., Canadian and Mexican land borders, stemming from the coronavirus pandemic.  Admission restrictions for non-essential business travel will remain in place until at least July 21, 2020.  U.S. Customs and Border Protection officers may still adjudicate immigration benefits applications filed under the USMCA.

Gibney will monitor implementation of the new agreement and provide ongoing guidance with respect to any procedural changes related to the admission of business persons under the USMCA.

 

 

On June 18, 2020, the U.S. Supreme Court blocked the Trump Administration’s attempt to terminate the Deferred Action for Childhood Arrivals (DACA) program, ruling that the  U.S. Department of Homeland Security (DHS)’s decision to rescind the program was arbitrary and capricious.  The DACA program, established by President Obama’s 2012 Executive Order, protects over 700,000 undocumented immigrants who were brought to the U.S. as children. Pursuant to the program, DACA recipients (often referred to as “Dreamers”) may be granted temporary relief from deportation and temporary work authorization.  The program does not provide a pathway to permanent resident status in the U.S.

Today’s decision makes clear that the Trump Administration has the authority to continue the DACA program or to rescind it. However, if the Administration elects to rescind the program,  DHS must issue a new decision terminating the program and must provide a reasoned explanation as to why the agency is no longer offering protections to DACA recipients.

In the majority opinion, Chief Justice Roberts concluded that DHS “failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”  DHS vs. Regents of the University of California Et Al.

What’s Next?

Under current rules, DACA recipients may continue to renew their DACA  benefits, including employment authorization. Previously issued employment authorization documents remain valid. DHS may publish a new memorandum terminating the program, this time providing  a reasoned explanation for termination, consistent with the requirements of the Administrative Procedure Act and the Court’s holding.  Such action could be subject to further legal challenges.

Given the uncertainty stemming from executive action concerning the temporary program and the ensuing legal challenges, it remains incumbent on Congress to enact legislation  providing  permanent protection for Dreamers.

For additional information, please contact your designated Gibney representative.