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Reports from well-placed sources indicate the Trump Administration will be announcing an additional round of immigration restrictions shortly. These measures are expected to include travel restrictions for common, employment-based, non-immigrant (temporary) immigration categories, such as L-1, H-1B, H-2B, and J-1. As such, employers with foreign national employees who are currently outside of the United States may wish to arrange for their return, where possible.
Regulatory proposals tied to the economic impact of COVID-19 are also expected and will target the H-1B category, as well as employment authorization options for F-1 students and H-4 spouses.
Background: Labor Market Risk Suspension Requires Review of Nonimmigrant Programs
As explained in our recent client alert, Revisiting US Travel Suspensions: Brazil Added, Sports Exempted, Economy Sets Future Policy Tone, the president’s travel suspensions have extended beyond country-specific, health-based measures. The president has issued broad measures prohibiting entry to the United States due to its high unemployment levels. This suspension applies to certain permanent immigration categories, but includes a directive to review nonimmigrant (temporary) programs based on economic considerations. These temporary categories are therefore the next item in the efforts to recraft economy-driven immigration policy.
Anticipated Entry Restrictions
A Presidential Proclamation or Executive Order is expected that will suspend entry to the United States for foreign nationals in the L-1, H-1B, H-2B, and J-1 categories for an initial 60 to 180-day period. There is a strong likelihood of multiple exceptions for employees in the areas of healthcare and food supply, as well as highly skilled and/or national interest professionals. At this time, it is not clear whether the restrictions will apply to both the L-1A (managers/executives) and L-1B (specialized knowledge) categories, or solely to L-1Bs. It is also unlikely that all J-1 subcategories will be prohibited from entry, as this includes medical residents as well as certain researchers, professors, and teachers.
We note that these restrictions, while potentially quite serious, only impact individuals who are outside of the United States. It does not prevent extensions or changes of status to the impacted categories for foreign nationals who are present in the United States. It would limit the ability of those who are outside the country from gaining admission. Unless exceptions are included in the expected new restrictions, the limits to entry would extend beyond precluding new non-immigrants from entering the United States. This would impact individuals who left the United States before COVID-19 and have been unable to return. Perhaps more importantly, the restrictions would effectively prevent foreign travel by employees in restricted categories, since they would not be able to return to the United States once they depart. For multinational employers and others engaged in international business operations, these measures could prolong business disruptions already experienced due to the COVID-19 pandemic.
Expedited Regulatory Actions: H-1, H-4, and F-1 Target Areas to Resurface
In addition to the anticipated entry restrictions, we expect a number of proposed regulatory changes seeking to limit employment-authorized immigration benefits. The administration has announced its intention to expedite the regulatory process for these changes. This would mean utilizing the economy as the "good cause" basis for bypassing the Administrative Procedures Act (APA) notice and comment requirements. While this will likely face legal challenges, it creates the possibility of swift action with immediate effect.
Potential H-1B Changes Include a $20,000 Filing Fee
One of the most sobering supposed regulatory changes is the addition of a $20,000 per case filing fee for H-1B petitions. Since H-1B petitions are required for each individual employee, a filing fee of this value would make such filings prohibitive for most employers. The current filing fees for H-1B petitions vary from case to case, ranging from under $500 to over $5,000. Other potential changes include additional wage-level restrictions and measures addressing third-party contracting (consulting) and further restrictions on the positions that qualify for the H-1B category.
In response to this possibility, employers may wish to consider the timing of any upcoming H-1B extensions for their current employees, among other measures. Securing an additional extension for existing employees would allow employers to keep their workforce intact without having to pay potentially exorbitant filing fees for the time being.
Other Expected Changes: H-4 EADs and F-1 OPT
The eligibility of certain H-4 spouses to obtain employment authorization has been a target of the current administration almost from the onset. However, these regulatory proposals languished and were ultimately shelved. Given the COVID-19 pandemic and the current economic downturn, these efforts have been revived, leading to the expectation that the H-4 EAD category is in danger of termination. In addition, another common target, the expanded F-1 OPT options for STEM students, is also being revisited. While these changes may be limited to the STEM OPT extension options – which were expanded prior to the current administration – such restrictions have serious consequences beyond the individual student. Foreign student enrollment in the United States has declined in recent years for many reasons including more restrictive immigration policies. Limiting the post-completion employment benefits granted to foreign students makes the United States less attractive to students who otherwise provide our colleges and universities with much-needed tuition money, as well as other benefits to our economy.
As predicted in our earlier client alert, the economy will drive and provide a renewed justification for restrictive immigration policies under the current administration. Travel suspensions have little impact while consulates are closed and travel is otherwise restricted. However, with some consulates starting to reopen for routine visa operations, such suspensions stand to have a meaningful impact. These measures, intended to protect the US workforce, can have the reverse effect when they interfere with normal business operations and limit access to needed resources. Moreover, labor market protections established by Congress are already inherent within the immigration system and existing immigration benefits programs.
With respect to the potential regulatory changes, many of these are recycled ideas that had been discarded or indefinitely placed on the backburner. The United States’ economic distress is the result of COVID-19, not the nuances of the F-1, H-4 or H-1B programs. As these programs provide economic benefits, changes require careful review and balancing of economic and other interests. It is therefore appropriate to undergo the careful consideration and opportunity for public input embodied in the standard APA processes. This allows businesses and other stakeholders to share their perspectives and provides stakeholders with advanced warning of important changes. We will continue to monitor for these changes and provide updates to our clients in a timely manner.