News & Insights

Update On The President’s Recent Proclamation Affecting H-1Bs And Common Questions

Having had a week to reflect on the proclamation I felt that it was necessary to write a second article about the potential implications and to answer some of the common questions that clients have been asking us about the proclamation.  My first article focused on the proclamation’s immediate impact on non-immigrant workers.  For details of this article please see the link below:

https://www.patellegal.com/trumps-attack-on-h-1bs-is-the-worst-yet/

However, the proclamation also sets out a plan for further action.  There has also been a lot of confusion about what the proclamation means for certain people, so the intent of this article is to try and clear up some of that confusion.

EB-2, EB-3 and H-1B.

Section 5 of the Proclamation directs the Secretary of Labor in consultation with the Secretary of Homeland Security to consider regulations or take other appropriate action against those seeking admission pursuant to an EB-2 or EB-3 immigrant visa and those on H-1B to ensure they do not disadvantage United States Workers in violation of section 212 (a) (5)(A) of the INA (Immigration and Nationality Act).

Section 212 (a) (5)(A) relates to the Labor certification also known as the PERM process.  It is believed that Trump may force individuals who already have an approved labor certification and I-140 to go through the labor certification process again.  See the recent Forbes article which discusses this at greater length:

https://www.forbes.com/sites/stuartanderson/2020/06/25/trump-may-attempt-to-force-long-time-h-1b-visa-holders-out-of-us/#39b2cd1d3ce5

Such a process is likely to have a new set of criteria, meaning those with an approved Labor certification may not qualify a second time around.  Obviously, such a move by the Trump administration would be devastating to both employers and especially employees.  Many employees, particularly Indian Nationals, have already gone through the Labor Certification and I-140 process many years ago and are now waiting for their priority dates to become current so that they can file for adjustment of status.

At this point, we don’t know for certain what will happen or whether such regulation will even see the light of day.  Trump is up for re-election this year so much of what happens will depend on whether he actually gets re-elected.

Potential H-1B changes

In so far as the H-1B program is concerned the Trump administration is looking to implement regulations to address the following:

  1. To make a Bachelor’s degree always a requirement for H-1B specialty occupation;
  2. Prohibit speculative employment;
  3. Put an end to third- party placements; and
  4. Redefine the employer/ employee relationship.

On 06/25/2020 the American Immigration Lawyer’s Association (AILA) released a transcript of the press call with a Senior Administration Official regarding the proclamation.  In this transcript, it is stated that the President wishes to get rid of the current lottery system and award the 85,000 visas to the top 85,000 highest salaries.  If, this were to happen, and it’s a big “If,” it would be impossible for small to medium businesses to compete with the likes of Amazon, Google and Facebook, as these companies or similar companies are likely to out pay almost every other U.S. company.

Such changes would also require the Department of Labor to change the prevailing wage calculation and would see an end to the 4- wage level system.

Biometric requirements

The proclamation directs the Secretary of Homeland Security in coordination with the Secretary of State to ensure that any alien apply for a visa or entry to the U.S. is registered with biometric information to include photographs, signatures and fingerprints.

Furthermore, the proclamation aims to prevent aliens from obtaining work authorization who have a final order of removal, are inadmissible or deportable or who have been arrested for, charged with, or convicted of a criminal offense.

This is particularly worrisome as someone charged with an offense may be prevented from obtaining work authorization, even if they ultimately are found not guilty of the offense for which they are charged.

If the President moves forward with his plans to continue to limit legal immigration, it must be through the proper legislative process.  It cannot be through Executive Order.  We will continue to keep you posted as developments arise.

However, let’s move onto some of the common questions which we have received since the proclamation was announced.

Common questions about the proclamation

  1. Will USCIS continue to adjudicate cases for H-1B, L-1 etc?

Yes, USCIS is continuing to adjudicate cases.  Employers can still continue to file amendments, transfers and extension petitions. These are not affected by the proclamation.  However, in one article USCIS has said that it may furlough 70% of its workforce unless it receives funding.  If this happens, adjudications are likely to significantly slow down.

  1. If I applied for a new H-1B in this year’s cap, will USCIS still approve my case?

Yes, as stated above USCIS will continue to adjudicate cases.  If you are approved as a change of status you will be in a valid H-1B status as of October 1, 2020.  If approved for a change of status, it is recommended not to travel until after the proclamation has ended because there is too much uncertainty as to whether it will be possible to obtain an H-1B visa.

If you are inside the U.S. and have been approved for a new H-1B, but for Consular processing, provided you were in the U.S. at the time of the effective date of the proclamation (June 24) you can in theory still go for stamping and receive an H-1B visa. At least this is how the proclamation was written.  However, Consulates do not always follow the same rules and it remains to be seen how the Consulate will apply the new rules to this scenario.   Right now, the Consulates remain closed, so it is not possible to go for visa stamping in any event.  We recommend consulting with an experienced Immigration Attorney before departing the U.S. if your case was approved for Consular processing.  If you still have a valid OPT/STEM OPT, it is recommended not to travel until after the proclamation has ended.

  1. I have a valid H-1B/ L-1 visa. If I leave the U.S. to travel will I be allowed to return to the U.S.?

Yes, you can travel as USCIS has confirmed that the proclamation will not affect those who have a valid visa.  However, with the travel restrictions in place combined with the fact that further travel bans or modifications to the proclamation are possible, you should only travel if absolutely necessary.

  1. I was in the U.S. on a valid H-1B/ L1 on June 24, 2020 but my spouse and children were outside of the U.S. and do not have a visa.  Are they eligible to apply for an H-4/L-2 visa when the Consulates re-open?

Unfortunately, because they were outside of the U.S. as of June 24, 2020 and do not have a valid visa they are prevented from applying for one until after the proclamation ends.  However, if they have a valid B-1/B-2 visa or are from a country that utilizes the Visa Waiver program they may still be able to enter.

  1. Does the proclamation affect F-1 students on OPT/STEM OPT?

The proclamation does not mention F-1 students and they are therefore not affected by the current proclamation.  However, modifications to the proclamation are possible so F-1 students are advised to keep up to date on any changes in the law.

An F-1 student with a valid visa is still permitted to travel, but travel should be limited to necessary travel.

  1. Does the Proclamation affect those seeking entry on TN or E-3 visas?

No, the proclamation does not affect TN or E-3.

  1. Does the proclamation apply to Canadian citizens entering as H, L or J nonimmigrants?

AILA has received confirmation from CBP HQ that Canadians entering as H, L or J nonimmigrants are exempt from the Presidential Proclamation issued on June 22, 2020, and effective on June 24, 2020. Guidance has been provided to local CBP ports on this issue.

  1. Does the proclamation prevent me from starting the PERM/I-140 process?

No, although the proclamation extends the April 22, 2020 proclamation in so far as it relates to immigrants, this again only applies to those seeking entry or a visa and who were outside the U.S. as of April 23, 2020.   The Department of Labor (DOL) will continue to process PERM (Labor certifications) cases and USCIS will continue to adjudicate I-140s.

  1. I was outside of the U.S. as of June 24 and have just filed an I-140. Will USCIS still adjudicate my case and can I still go to the Consulate to obtain an Immigrant visa?

I-140s approved for Consular processing will still be adjudicated by USCIS and the NVC will continue to accept documents.  The process will only be stopped at the Consulate who have been directed not to issue visas.  As stated above the proclamation extends the original proclamation relating to immigrant visas until Dec 31, 2020.

In any event, the Consulates remain closed at the time of writing this article.  In the event that the Consulates re-open under the current proclamation, you will not be able to obtain an immigrant visa until after Dec 31, 2020.  Please note it is possible that the effective date of the proclamation will be extended.  This is largely dependent on how the U.S. economy recovers and how many Americans remain unemployed at the end of the year.

  1. Can the proclamation be challenged in Federal Court and how likely is it that such a challenge would be successful?

Yes, we believe it can be as there is an argument that the proclamation violates the Administrative Procedures Act.  This recent Bloomberg article provides a great insight into the probability and success of a lawsuit.

https://news.bloomberglaw.com/daily-labor-report/trumps-incoming-work-visa-freeze-will-be-hit-with-lawsuits

Final thoughts

The Proclamation is nothing but a political move by the President and an attempt to fulfill a campaign promise.  The steps taken by the President are thought to create only 525,000 jobs for U.S. workers, although if USCIS furloughs 70% of its workforce that number will surely be reduced.  Bear in mind that there are 36 million unemployed people in the U.S., the proclamation will do very little to protect or create jobs for U.S. workers.  Given that many companies may choose to set up business in other countries, Trump’s order may ultimately reduce the number of jobs available to U.S. workers.

If you are concerned that the Proclamation may affect you or your family’s status please reach out to our Senior Immigration Attorney, Chris Prescott at cprescott@patellegal.com

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