NPZ Immigration Law Blog

From the U.S. Chamber of Commerce

There will be a Presidential Proclamation the week of June 15th calling for a temporary ban on H-2B and other nonimmigrant programs, with a broad national interest catch-all exception.  They want it to extend to October 1st.  A lot of this is about the H2b, OPT and H1B – but as you see by my highlight below, it does also mention the J-1 program.

Senator Graham from South Carolina to speak today between 3 and 4 you can register below.

Register here:  https://register.gotowebinar.com/register/2485302405888163342

Good Evening Immigration Subcommittee Members,

I apologize for the late hour of this notice, but it contains quite a bit of information that many of you have asked me for earlier today, much of which I think you are anxious to hear of.

The report I heard a little after 8:45 this evening, was that the WH, DOL, and DHS are very close with regard to how they want to move forward on a forthcoming proclamation, as well as other regulatory ideas that DHS and DOL should pursue in the coming months.  A new Presidential Proclamation utilizing INA 212(f) and 215(a) to ban the entry of certain nonimmigrants will likely be announced in the next two weeks, with the likelihood of a formal announcement happening on the week of June 15th… The reason why an announcement is unlikely for next week is because the principals meeting with the President is booked for late next week. It was explained to me that once the terms of the proclamation are settled upon, there will likely still be a significant amount of work that needs to be done, thus making it likely that an announcement will come in the following week.  This isn’t to say that an announcement week is outside of the realm of possibility, but at this time, those that are working on this are not expecting an announcement by next Friday.

 As for the Presidential Proclamation, it appears that the WH, DOL, and DHS have settled on a temporary entry ban for H-1B, H-2B, L-1, and J-1. I was informed that it is highly likely that there will be exemptions for nonimmigrants in these classifications that are performing COVID related medical research, healthcare professionals, and food supply workers.  To that end, there will be exemptions for workers in the above-mentioned NIV categories if the employer has performed certain additional recruitment efforts to locate American workers to fill these jobs, but have been unable to do so.  Lastly, there will be a broad national interest catch-all exception.  It is my understanding that there still remains some difference of opinion regarding how L-1A managers and executives should be treated, specifically on whether these individuals should be exempt from this ban.   

As to the duration of this proclamation that will ban the entry of nonimmigrants in the above classifications, the time range is between 90-180 days, with those in the know handicapping it at 120 days.  The justification given to me for this duration is that certain officials will insist upon the ban being in effect when new H-1B nonimmigrants from this year’s cap season would typically be allowed to enter the U.S. beginning on October 1.  If this ban is in place, cap subject cases from this year will be prohibited from entering the U.S. when the new FY begins. 

 If that weren’t enough, the regulatory initiatives that that WH has allegedly asked DOL and DHS to pursue (which apparently were largely agreed to by the principals at yesterday’s meeting) are numerous and have the potential to be, in my view, more disruptive than the proclamation would be.  The regulations that DOL and DHS are slated to pursue, at least at this point in time, include the following:      Imposing a requirement that H-1B workers being paid OES Wage Level 1 will not get more than a 2 year authorization for employment, and that when this H-1B worker is seeking an extension, the H-1B employer must pay that individual a wage no less than OES Wage Level 2 or the worker’s visa will not be extended.

• Extending the concept of joint employment to companies that have their employees working at a client’s worksite by requiring both a primary employer (e.g. an IT services company) and secondary employer (the client of the IT services firm) to file an LCA for a given H-1B worker.  
  
• The entering of an MOU between DHS and DOL to change how BLS will calculate its 4 wage levels, with the idea that all 4 wage levels will increase from their current rates.
  
• Imposing an additional $20k fee on all H-1B petitions, which admittedly is less than the $75k-100k that we heard earlier this week, but is still incredibly excessive for H-1B employers and, in my view, is legally suspect.
  
• Moving the Strengthening the H-1B program rule forward, which would redefine key terms like “specialty occupation,” “employer,” “employee,” and “employer-employee relationship,” which I was specifically told to expect movement on this proposal in the next few weeks. 
  
• Rescinding the H-4 rule, which would strip the ability of many H-4 dependent spouses from working in the U.S., as well as rescinding the STEM OPT Extension rule, which would cut OPT down to 1 year for all OPT recipients.  It is my understanding that there was discussion about imposing labor market tests into these rules as opposed to eliminating these different programs that provide employment authorization, but that approach was not taken.
  
• Imposing new constraints on OPT that were similar to what was being contemplated in the Kushner bill i.e. an international student can only obtain OPT if they were in the top 5%-15% of their graduating class.
  
•  Rescinding the work authorization of various categories of individuals, including TPS recipients, Asylees, and Refugees, which would basically create a significant amount of new individuals who in the country would become public charges.  As it was explained to me, the idea is that the only people who weren’t admitted into the U.S. who would still retain their employment authorization would be DACA recipients.
  

I imagine many of you will read this and react like I did in that as I absorbed all of this information, it raised more questions than it answered.  If you have any questions on the above, please don’t hesitate to reach out.