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Anticipated Presidential Proclamation May Impact H-1B, L-1, and Other Nonimmigrant Entry Into the United States, and Asylum

11 Jun

Foster LLP is hearing from a variety of sources that a new Presidential Proclamation is likely to be issued soon, and that it may impact the entry, and possible re-entry, of H-1B, L-1, J-1, and other nonimmigrants to the United States. 

On April 22, President Trump issued a proclamation that temporarily suspended, with some exceptions, the entry into the United States of intending immigrants as well as the entry of people as new lawful permanent residents for a period of 60 days.  Within that proclamation, he also called for the Secretaries of the U.S. Department of State and the U.S. Department of Homeland Security to evaluate and after 50 days report to him any recommendations on whether to extend the suspension beyond the 60 days and to expand the scope of the suspension to include nonimmigrants as well.  Their recommendations are due to the President today, June 11. 

In the approach to this deadline, rumors have spread regarding the likely contents and scope of the anticipated proclamation. 

While there is not an official proclamation as of the time of this writing, the following rumors are considered by a variety of sources to have some degree of credibility: 

  • The new Presidential Proclamation could issue as soon as late this week, but it is likely to issue by June 30 at the latest. 
  • The suspension could be for as long as 90-180 days. 
  • The scope could extend to H-1B, H-2B, L-1, ad J-1 nonimmigrants. 

Other rumors suggest that the proclamation could even impact those who have already been approved and previously admitted to the United States in H, L, or J status and are simply seeking to return to their U.S. employment after a temporary trip abroad.  While we believe it would be extraordinary for the President to extend restrictions in such a manner, clients who are currently traveling abroad should consider returning to the United States as soon as possible before a proclamation is issued. 

Other rumored changes are likely to require rulemaking through a proper period of notice and comment.  Such changes that may be on the horizon include:

  • Rescission of the F-1 STEM optional practical training (OPT) regulation that provides for an additional 24 months of F-1 OPT work authorization for students graduating from STEM degree programs in the United States. 
  • Additional restrictions on F-1 OPT student work authorization for the 12-month OPT program. 
  • Rescission of the regulation allowing certain H-4 nonimmigrants to apply for employment authorization. (Notably, in early May 2020, however, the U.S. Department of Homeland Security asked a federal judge in Washington, D.C. not to halt H-4 EADS saying that any purported harm alleged by Save Jobs USA is speculative and insufficient to warrant an injunction.)
  • Additional fees and restrictions on the H-1B specialty occupation work visa program. 

On Wednesday, June 10, the Trump administration did propose changes to the asylum program, including limiting how people qualify for asylum.  Details are expected to be published in the Federal Register on Monday, June 15, with 30 days for public comment before they take effect if there are no lawsuits filed that delay the implementation.  
 
In these uncertain times, Foster recommends avoiding any unnecessary international travel if already in the United States.  If international travel is needed,  travelers should contact their Foster immigration attorney before making plans to depart the United States and should check again for any restrictions that may be in place immediately prior to departure.  For those nonimmigrants who are outside the United States, Foster recommends returning to the United States as soon as possible. For those who may have a pending asylum claim or are in the process of seeking asylum, it is also recommended that you contact your Foster immigration counsel. 
 
Foster will continue to track changes in immigration law and procedure, as well as the ongoing impacts of the President’s proclamation, and will make additional updates available via our firm’s website at www.fosterglobal.com