Possible Expansion of Executive Action to Suspend Entry of Foreign Workers to the U.S

Over the last few months, citing the COVID-19 pandemic and the nation’s resulting high unemployment numbers, the Trump Administration has issued two Presidential Proclamations restricting the entry of certain foreign nationals to the United States. In the recent Proclamation that suspended the issuance of immigrant visas to persons outside the United States, the President declared that his Administration would review nonimmigrant programs and consider other measures to stimulate the U.S. economy and ensure the employment of U.S. workers. The past several days have seen an uptick of news articles speculating on the possible breadth of the Administration’s future restrictions on nonimmigrant workers.

At the time of this writing, no new Presidential Proclamation or Executive Order has been issued by President Trump affecting nonimmigrant workers. However, it is anticipated that the President may announce another Proclamation within the next few weeks specifically targeting the entry of “new” H-1B, L-1, and J-1 nonimmigrants. If issued, it is likely that this Proclamation will only impact certain nonimmigrants who are located outside the United States (temporary ban on entry) and suspend visa applications (temporary ban on issuing new visas) to enter the country. We do not believe that the Proclamation would have any immediate impact on nonimmigrant workers who are physically present in the United States and in a period of authorized stay. We note that most U.S. embassies and consulates abroad have already suspended issuance of visas due to the COVID pandemic, and it is uncertain when this suspension will be lifted.

Until the Proclamation is issued, media outlets will undoubtedly continue to speculate on how far reaching the President’s executive action will be. It may be that initial drafts of the anticipated Proclamation are being "leaked" to the press and other sources, but that these drafts will continue to be modified before taking final form and officially released. News reports leading up to the most recent Proclamation incorrectly predicted that the action would have a far reaching impact on foreign workers currently present in the United States, which it did not. The U.S. Chamber of Commerce, and other and business groups have already called upon the President to curtail his efforts to restrict the employment and entry of H-1B and L-1 workers, citing the important contributions of foreign workers to innovation and productivity growth, as well as the likely disruption to U.S. businesses whose labor force would be undercut by restrictive measures.

If and when President Trump issues a Proclamation, we will notify our clients immediately and advise on any impact to their nonimmigrant employees. In the meantime, we recommend that clients remind their foreign national employees who are now physically present in the United States to consult with our office before making international travel plans. This will allow us to further advise on the risks that a future executive action by the President may have, based on the most recent information available at the time, and the individual’s specific situation.