The White House has signaled that further immigration restrictions will be imposed in response to the novel coronavirus epidemic – this time to restrict foreign workers from entering the United States.
The rumored executive decree prohibits the entry of non-migrant workers with visa classifications H-1B, H-2B, L-1 and J-1. H-1B and L-1 visas cover skilled workers and in-house transfers. H-2B visas cover temporary workers, and J-1 visas cover work and study exchange programs (e.g. visits to doctors, au pairs and warehouse advisors).
The order is expected to provide a temporary ban for workers outside the United States wishing to apply for an H, L, or J visa. The ban is expected to last between 90 and 180 days (although the government has signaled a strong preference for 120 days) and would include non-immigrants selected in this year's H-1B visa lotteries to work in the U.S. in October . Any order would likely include exemptions for non-migrant workers who do coronavirus medical research, health professionals and food workers, and exemptions for employers who cannot hire American workers to fill certain positions. The order is also likely to include a comprehensive national exception and a mechanism for companies to request exemption for a "specific reason" (although there is no clarity on what could be considered a "specified reason"). .
In addition to issuing an implementing regulation, the White House has asked the Department of Labor ("DOL") and the Department of Homeland Security ("DHS") to pursue additional regulatory initiatives to restrict non-immigration visas. In contrast to an implementing regulation, all regulatory initiatives are subject to the usual notification and comment regulation process, which takes between 30 and 60 days. After the comment period, new rules would be implemented no earlier than 30 days after publication in the Federal Register. Accordingly, these initiatives could enter into force in autumn 2020.
The regulatory initiatives under consideration would create significant and costly barriers to employing skilled foreign workers. An initiative would require that both the employer and the customer make an application for Working Conditions ("LCA") on behalf of an H-1B worker who is to work at the customer's site. This initiative alone could significantly frighten customers' willingness to hire these workers. Another initiative would remove the exception that allows science, technology, engineering, and math students to receive an additional 24-month optional internship ("OPT") work permit during or after their US education, and another would only limit the OPT eligibility to these international students in the top percentile of their class. Other initiatives under consideration would increase H-1B visa fees by $ 20,000, increase the mandatory minimum wage for foreign workers at all levels of the federally prescribed wage scale, and limit the definitions of "specialty," "employer," "worker." and "employer-employee relationship". Finally, some of these initiatives would revoke existing programs, including work permits for spouses of visa recipients under the H-4 Visa program and work permits for asylum seekers, refugees and temporarily protected status holders.
Each of these initiatives is expected to be challenged by American companies and organizations that rely on non-migrant workers, including many from the technology, medical, manufacturing, and hospitality sectors. The farewell will probably also depend on the election results. Given the wide scope of the initiatives and the forthcoming implementing regulation, companies that employ non-migrant workers should initiate contingency planning to mitigate the impact of the proposed changes.
As you know, things change quickly, there are no clear powers or rules for clear lines in this area, and the relief efforts and interpretations described here can change. This blog does not reflect a clear legal declaration, but represents our best understanding and interpretation based on the current state of affairs. This blog does not address the potential impact of the numerous other local, state, and state orders issued in response to the COVID-19 pandemic, including, without limitation, the potential liability in the event of an employee getting sick on family vacation, sick pay and other problems.
Sheppard Mullin endeavors to provide employers with updated information on COVID-19 and its effects on the workplace. Learn about the legal implications of Sheppard Mullin's Coronavirus Insights portal, which now brings together the company's various COVID-19 blog posts on a wide range of topics.