Executive Order Limiting Temporary Worker Admissions

On June 22, 2020, the Trump Administration issued its long anticipated Executive Order (EO) suspending admission to the U.S. of some foreign workers in the H-1b (specialty occupation professional), L-1 (intracorporate transfers), J-1 (interns, trainees, summer workers, teachers, camp counselor, au pairs) and H-2B (nonagricultural short term workers) visa categories. The EO, which took effect June 24 at 12:01AM EDT, will remain in effect until December 31, 2020, and may be extended or shortened.

The EO has no direct effect on H-1b, L-1, J-1, or H2-B workers who are already in the US. Moreover, there are broad exemptions permitting readmission of foreign workers who already held visas in these categories (whether or not they have previously used the visas to enter the US) and who were outside of the US on June 24. The EO only applies to an individual (and their beneficiaries) who:

1) was outside the United States on June 24, 2020;

2) did not have a nonimmigrant visa (presumably in the H-1b, L-1, J-1, or H2-B categories) in effect on June 24, 2020; and

3) does not have some other travel document “such as a transportation letter, an appropriate boarding foil, or an advance parole document)” that was valid on Jun 24, 2020 “or issued

on any date thereafter” that permits “travel to the United States and seek entry or admission.”

Several points jump out from these criteria. First, H-1b, L-1, J-1, or H2-B workers who were outside of the U.S. on June 24 temporarily, but who held visas or “an official travel document other than a visa” are not subject to the bar.

Second, by the plain meaning on the EO, H-1b, L-1, J-1, or H2-B workers who were in the U.S on June 24 by definition are not subject to the entry bar should they later depart, even if their visa stamps are expired and they require issuance of a new one at a consulate. It remains unclear how this provision will be implemented at the consulates.

Third, because Canadian citizens are exempt from most visa requirements, including H-1b and L-1, they are exempt from the admission bar. Customs and Border Protection headwuarters has confirmed that view, and so instructed the Ports of Entry.

Fourth, there are many temporary worker visa categories that the entry bar does not apply to. These include O-1 (extraordinary ability individuals), Trade NAFTA or TN (certain Mexican and Canadian business professionals); F-1 students engaged in Occupational Practical Training or other authorized employment; R-1 (foreign media correspondents); C-1 (flight crews); and G-4 (employees of international organizations) among others.

There are several other broad, but vague exemptions to the temporary worker entry bar. These include:

1. An individual “seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain”. It is not clear whether an otherwise barred H-1b,
   L1, H-2b, or J-1 foreign worker employed in an essential food supply chain-related activity would be exempted.

3. Any individual whose entry “would be in the national interest” as determined by the State Department of Homeland Security. The two agencies are supposed to flesh out the meaning of this catchall. The EO articulates some of the national interest categories, including individuals whose works is critical to defense, law enforcement, diplomacy, or national security considerations, “are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized”; and are involved with Covid-19 medical research.
   
   
4. The vaguest and potentially broadest exception from the entry bar applies to workers who “are necessary to facilitate the immediate and continued economic recovery of the United States.” DHS and State are supposed to figure out what that means, but it could be very broadly interpreted. That’s unlikely.

The EO also includes several “Additional Measures” relating to both immigrant and nonimmigrant workers that are both vague and worrisome. First, the EO directs the Labor Department to consider adopting regulations or “take other appropriate action:

to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers.

In other words, the Labor Department has been tasked with determining whether already admitted nonimmigrant workers and green card holders should be found inadmissible because their labor is no longer necessary and negatively impacts U.S. workers. The end result, presumably, would be an after the fact inadmissibility determination for temporary workers and permanent residents in certain employment categories . The immigration laws have never been used this way, and the issue would be tied up in court for years. My guess is that this “additional measure” is DOA.

Of narrower sweep but more immediate concern, the EO also directs the Secretary of Labor to “undertake, as appropriate”, on a proactive basis, investigations into H-1b employers’ compliance with Labor Condition Application (LCA) attestations. The statute describing employer LCA attestations (payment of the required minimum wage, notice to employees of a filing, retention of documents, and others) generally bars DOL from investigating employers’ LCA compliance absent a specific complaint. Moreover, DOL may not use a specific complaint with regard to a single LCA to begin a comprehensive investigation of all of the employers’ LCAs. As a result, LCA enforcement has been rare.

The principal exception to the proactive LCA investigation bar applies where the Secretary of Labor “personally certif[ies] that reasonable cause exists” to believe that an employer is not in compliance with the LCA requirements. In the past, the Labor Secretary has apparently had better things to do with his/her time than spearhead broad investigations of H-1b employers, as this power of investigation has rarely been used. I would, however, expect to see more investigations of H-1b employers which the Secretary “personally certifies” are warranted.

The EO will obviously impact directly beneficiaries of approved FY2021 H-1b petitions who are outside of the U.S. and do not have a visa in effect on June 24. The impact should be measured, however. Since FY2021 H1b start date is not until October 1, 2020, the initial hit may be for as little as 3 months, to the end of the year. Additionally, affected H-1b workers will be able to recapture in the future any days spent outside the US to ensure the availability of a full 6 years in the US in H-1b status. The same applies to L-1 employees.