On April 22, 2020, President Trump issued a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” to pause issuance of new immigrant visas to applicants who are outside the United States for 60 days.  As reported on this blog, although the proclamation is currently limited to aspiring immigrants who are outside the United States and do not yet have a valid immigrant visa, it has the potential to affect other visa categories. Specifically, the proclamation requires the Secretary of Labor (“DOL”) and the Secretary of Homeland Security (“DHS”), in consultation with the Secretary of State, to review nonimmigrant programs within 30 days and to recommend “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

While the recommendations are not yet publicly available, reports are circulating that the administration will consider bans of certain nonimmigrant categories. In a letter to the White House this week, a group of nine Republican Senators expressed concern over the potential adverse impact that broad-based restrictions on such nonimmigrant categories could have on US employers, especially small businesses, in the wake of the COVID-19 pandemic. If adopted, the nonimmigrant measures reportedly under consideration would restrict issuance of new visas in the H-1B, L-1, and H-2B categories as well as the availability of work authorization for foreign students and the spouses of certain H-1B workers who are awaiting the completion of their green card applications.[1] The administration is also expected to extend the sixty-day suspension of immigrant visa issuance imposed by the President.

Anticipated Measures to Restrict Issuance of New H-1B, L-1 and H-2B Visas

The nonimmigrant measures we understand are being considered now include banning the entry to the United States of:

  • All new H-1B specialty occupation workers unless the worker will be paid at the highest wage level (Level 4), as designated by the DOL, for the job in the area of intended employment, which would restrict admissions by workers in multiple professions, including business, finance, research, and the STEM (Science, Technology, Engineering, and Mathematics) fields;
  • All new L-1 intracompany transferees, including international executives, managers, or employees with advanced or specialized knowledge relevant to a global company’s operations in the United States; and
  • All new H-2B temporary non-agricultural workers unless the work involves duties that are essential to maintenance of the US food supply chain.

As with previous proclamations banning entry of non-citizens to the United States, the President is likely to rely on sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. §§1182(f) and 1185(a) as authority for these measures directed at nonimmigrants.

H-1B (Specialty Occupation) Workers
In general, the H-1B visa category applies to positions that require the equivalent of a bachelor’s degree in a particular specialty as a minimum requirement for the position. The H-1B visa has a “cap,” an annual numerical limit, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a US master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

The prospective H-1B employer must agree, in a Labor Condition Application (“LCA”) certified by the DOL Office of Foreign Labor Certification to certain employment conditions, including an agreement to pay the H-1B worker the greater of the prevailing (industry) wage for the position in the area of employment or the actual (company) wage paid by the employer to workers employed in the same or similar occupation.

The principal source for the prevailing wage rate for a given position in the area of employment is the Foreign Labor Certification Data Center Online Wage Library. DOL regulations specify that determinations using a government survey shall be made available for each occupation at 4 levels of wages commensurate with experience, education, and the level of supervision. Level 4 is the highest level, and applies to a “fully competent” employee using “advanced skills and diversified knowledge to solve unusual and complex problems.” These employees receive only “technical guidance” and their work is reviewed “only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations.”[2] They generally have management and/or supervisory responsibilities. Levels 2 (qualified) and 3 (experienced) also require competency and training commensurate with the attainment of a bachelor’s degree, but incorporate higher levels of supervision over the worker. Level 1 wage applies to entry-level workers.[3]

L-1 (Intracompany Transferees)
The L-1 nonimmigrant classification enables a US employer to transfer an executive or manager (L-1A) or a specialized knowledge worker (L-1B) from one of its affiliated foreign offices to one of its offices in the United States. The employee must have been working for the employing organization outside the United States for one continuous year within the three years immediately preceding the employee’s admission to the United States. Unlike the H-1B and H-2B categories, there is no cap on the number of L-1 visas that may be issued annually. According to data compiled by the Congressional Research Service, 78,178 L-1 visas were issued in FY 2017. See Congressional Research Service, Nonimmigrant and Immigrant Visa Categories: Data Brief (October 1, 2019).

H-2B (Temporary Non-agricultural) Workers
The governing statute authorizes 66,000 H-2B visa numbers on an annual basis, with 33,000 visas allocated for employment beginning in the first and second halves of the fiscal year, respectively. To petition for an H-2B worker the employer must establish that:

  • There are not enough US workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed US workers.
  • Its need for the prospective worker’s services or labor is temporary, i.e., seasonal, one-time need, peak load, or intermittent need.

On May 14, 2020, the Department of Homeland Security published a temporary final rule to change certain H-2B requirements to help secure the US food supply chain and reduce the economic impact of the coronavirus (COVID-19) public health emergency on H-2B employers. Under this temporary final rule, an H-2B petitioner with an approved temporary labor certification can start employing H-2B workers immediately for positions essential to the US food supply chain. Specifically, the employer may initiate employment once USCIS receives the H-2B petition and the new attestation, but no earlier than the start date of employment listed on the petition. Additionally, DHS is temporarily amending its regulations to allow certain H-2B workers to stay beyond the three-year maximum allowable period of stay in the United States.

Other Likely Nonimmigrant Measures
In addition to the foregoing measures, the administration has mentioned optional practical training (OPT) work authorization for foreign students as a possible target. [4] Currently, STEM graduates in F-1 student status are eligible for up to three years of OPT work authorization, the authority for which is currently being challenged by The Alliance of Technology Workers (WashTech) in US District Court for the District of Columbia.[5] Finally, DHS may recommend elimination of work authorization for the H-4 spouses of H-1B workers who are in the green card process.

Anticipated Challenges to Nonimmigrant Measures

While Sections 212(f) and 215(a) of the INA grant the president broad-based authority to ban entry of nonimmigrants which the president finds are “detrimental to the interests of the United States,” 8 U.S.C. § 1182(f); see 8 U.S.C. § 1185(a), court challenges are anticipated. For example, the new restrictions could be challenged on the ground that they do not further the President’s stated goals of protecting the US labor market and reducing strain on the US healthcare system. The Supreme Court’s decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), teaches that courts will not look behind the President’s stated reasons to determine if they are pretextual. But that should not prevent courts from assessing whether the chosen means actually furthers the President’s stated ends. Of course, potential legal challenges will depend on the particular restrictions the President puts in place.

[1] There is no indication that extensions of, or changes in status from, existing work visas would be affected.

[2] Department of Labor’s “Prevailing Wage Determination Policy Guidance” (November 2009)

[3] Id.

[4] Next Trump Immigration Target: OPT for International Students, Stuart Anderson, Forbes, May 4, 2020.

[5] WashTech v. DHS, Case 1:16-cv-01170-RBW.

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