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New DOS Guidance After Federal Suits Against The Presidential Proclamations

Since the beginning of the Coronavirus Pandemic, President Donald Trump has issued two Proclamations banning entry of a huge range of foreign workers and family immigrants. The proclamations are supposedly in response to unprecedented unemployment levels.

More specifically, virtually no employment-based immigrants (H1s, L1s, Js and their families) or family immigrants (except for the spouses and children of U.S. citizens) or Diversity Visa immigrants can enter the United States. The proclamations claimed the action was necessary due to the high U.S. unemployment rate. However, no serious economic arguments or data were presented to support the contention that allowing fewer immigrants would lower the unemployment rate.

In the meantime, the Department of State (DOS) has been enforcing and implementing these proclamations as precluding the issuance of visas.

There is currently a lawsuit challenging the President’s actions. While under the Immigration and Nationality Act the President has the authority to suspends the entry of foreign nationals, such suspension should be based on specific findings that the entry of foreign nationals is detrimental to the interests of the United States. See 8 U.S.C. § 1182(f).

The lawsuit asserts that the “findings” requirement is not satisfied by mere assertion or guesswork unsupported by evidence or rational analysis. The Executive Branch must investigate the issues before it and find in good faith that the entry of specific classes of individuals would be detrimental to the national interest. That is how the president saved the proclamation at issue in Trump v. Hawaii, 585 U.S. ___ (more)138 S. Ct. 2392; 201 L. Ed. 2d 775. The Executive Branch conducted a worldwide multiagency review and issued detailed reasons for finding that nationals of particular nations should be barred from entry.

Here, however, the Executive Branch has not provided any economic analysis supporting the assertions that admitting foreign nationals take Americans’ jobs. On the contrary, it has been proven that Immigration creates jobs and grows the economy, improving job prospects and working conditions for U.S. workers.

The lawsuit includes a motion for a preliminary injunction to enjoin the presidential proclamations. The motion is supported by economists who state that research shows there is no economic basis for the proclamations. It also cites a National Foundation for American Policy analysis of Bureau of Labor Statistics data that found the unemployment rate in computer occupations, in which most H-1B visa holders work, had remained stable since January 2020, based on information available at the time of the second proclamation on June 22, 2020. Per the lawsuit’s arguments, the presidential proclamations do not withstand the slightest scrutiny and seem invalid under the plain language of the very statute purporting to authorize them.

Considering the strong legal arguments in the lawsuits, the Department of State (DOS) has issued new guidance that carves out broad exemptions to the Ban. It was already clear that the Presidential proclamation included exemptions for foreign healthcare workers coming to alleviate the effects of Covid-19 and foreign workers needed by a US department or agency.

Now, under the DOS’ new guidance, exemptions to the proclamation also include Foreign citizens working in the U.S. who found themselves stuck abroad when the Trump administration closed the country’s borders and suspended work visas. These foreign citizens may return to continue their same jobs. This includes individuals seeking to return to the U.S. on H-1B specialty occupation visas or L visas for internal company transfers to resume ongoing employment in the same position with the same employer and visa classification (“continuation of previously approved employment without change with the same employer).

The exemptions also include technical specialists, senior-level executives, or managers with an employer who contributes to a critical infrastructure need.

H-1B applicants:

  • For H-1Bs, two of the following five indicators must be present to determine whether they fall into this exemption category:
  • An employer has a continued need for the individual’s work (not applicable if the employee is able to work remotely from outside of the U.S);
  • An individual makes a significant and unique contribution to a critical infrastructure need;
  • The individual is paid at least 15% more than the prevailing wage;
  • An individual has unusual expertise in the industry;
  • Employers would suffer financial hardship if the visa is denied. Unlikely to allow entry-level workers to come back. Aimed at more senior level workers.  Possibly an attempt to stave off litigation to show visa bans are not as restrictive as claimed.

L-1A applicants

  • For L-1As, two of the following three criteria must be met to determine whether they fall into this exemption category:
  • The individual is a senior-level executive or manager;
  • The individual has strong experience with the company showed by substantial knowledge and expertise within the organization so that hiring a new employee will cause the employer financial hardship; or
  • The individual will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States do not fall into this category unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B applicants

  • For L-1Bs, all the following three requirements must be present to determine whether they fall into this exemption category:
  • The individual will provide significant and unique contributions to the petitioning company;
  • The individual’s specialized knowledge is specifically related to a critical infrastructure need; and
  • The individual has strong experience with the company showed by substantial knowledge and expertise within the organization so that hiring a new employee will cause the employer financial hardship.

Under this new guidance, the DOS acknowledges that forcing employers to replace employees in this situation may cause financial hardship. The Executive Branch recognizes the potential economic impact of banning entry of skilled foreign workers and family immigrants.

In any way, the Executive Branch is still inventing the law by adding new requirements and paperwork burdens for visa applicants based on unfounded and alleged economic relief. This is what the lawsuit is challenging. The next hearing is scheduled for August 27, 2020.

If you wonder whether the presidential order or the new DOS’s guidance applies to you, contact our attorneys at mmutombo@patellegal.com or cprescott@patellegal.com.

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