Many news reports indicate the Trump Administration will soon issue an expanded entry suspension to prevent entry into the United States of individuals holding H-1B and other work-related visas. While versions have been leaked, we will not know the full impact until the final action is issued.
If it is like the existing entry suspensions, it will limit only those currently outside the U.S. It is also likely to have exceptions, such as for physicians and other health care workers treating COVID-19 and possibly others.
The president has the power to limit entry into the U.S. by an executive action, as we have seen many times in the last several months.
Possible Changes in Regulations
Potentially more concerning are reports that the administration will also propose rules – which would go into effect immediately – to limit the grant of H-1B and other work-related approvals or to change the rules around such applications.
Normally, agencies must go through a “notice and comment” process to change regulations. In an emergency, an agency can issue “interim final regulations” that go into effect immediately.
We expect that if the Administration takes this step, litigation will follow immediately. What is less clear is whether a court would stop the rules while litigation is pending. If not, the rules would be implemented despite any legal challenge.
Who Would be Affected?
Changes in regulations should not be retroactive. A person in H-1B or other affected status is unlikely to lose status.
It also would be unusual for pending applications to be affected. Premium processing is now available for many applications and could be filed to speed processing.
New applications or extensions of stay are most likely to be affected. We have already been in contact with our clients who have extensions within the filing guidelines. We are filing new applications as quickly as possible.
Actions You Can Take
The reason these restrictions are being considered is that temporary work visas are seen by some in the Administration as undercutting U.S. employment. High unemployment caused by COVID-19 could be considered an “emergency” necessitating a limit on foreign workers.
As employers of foreign workers, you know that this is not generally the case. If a limitation on temporary work visa programs would be harmful to your business, now is the time to contact the White House and your members of Congress to tell your story. Our Government Relations attorneys can assist if needed. We are also happy to provide information and talking points to your team.
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