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Posted June 11th, 2020 in Top Stories, Legal Insights with Tags ,

June 2020: A Bumpy Ride for Employers Who Sponsor Foreign Workers

June 2020 is already proving itself to be a challenging month for employers who sponsor foreign workers.

H-1B Cap Season

This year’s H-1B cap program was administered differently than it has been in previous years. The most notable change was the requirement for employers to first file electronic registrations on behalf of H-1B beneficiaries before filing actual petitions, after which time the USCIS would conduct a random lottery from the registrations received. With this new process, employers submitted H-1B cap registrations for nearly 275,000 beneficiaries, which is a 37% increase over last year’s H-1B filing season. The regulations provide a 90-day filing window to submit H-1B cap petitions on behalf of those registrations that were selected, and because the USCIS completed its selection on March 31, 2020, this means that all cap-subject petitions must be submitted to the USCIS by June 30, 2020.

This final rule requires petitioners to attest that they intend to file an H-1B petition for the beneficiary in the same position for which the registration is filed. This attestation is intended to ensure that each registration includes a bona fide job offer; a selected registration, therefore, should result in the filing of an H-1B petition by the petitioner on behalf of the named beneficiary.

The challenge for some employers, however, is that because of the economic downturn resulting from the COVID pandemic, they are no longer able to file H-1B petitions for selected beneficiaries because the positions are no longer available. For these cases, the USCIS suggests that employers retain evidence of the reason for not filing H-1B petitions in case they are asked for it by USCIS in the future.

Nilan Johnson Lewis’ immigration team recommends that employers be more proactive than what the USCIS suggests by submitting letters to the USCIS explaining why the petition was not filed. While the USCIS does not require this, we hope that taking this approach will result in the USCIS selecting more H-1B registrations from the initial registration pool.

New Round of Entry Restrictions?

 On April 22, 2020, the Trump Administration announced Presidential Proclamation 10014, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” (85 FR 23441, 4/27/20). Relying on the authority granted to the President by sections 212(f) and 215(a) of the Immigration and Nationality Act, the proclamation suspends for at least sixty days the entry of certain immigrants who have not been approved for permanent resident visas. The basis for the restrictions, according to the proclamation, is that without intervention, the United States faces a potentially protracted economic recovery that would only worsen if immigrants were allowed to enter the United States, because they would compete against Americans “for almost any job, in any sector of the economy.”

The proclamation was largely redundant because both immigrant (“permanent”) and nonimmigrant (“temporary”) visa issuance had already ceased the month prior, when the U.S. Department of State suspended routine visa services at all U.S. Embassies and Consulates worldwide in response to the COVID pandemic.

There are two very noteworthy sections of the proclamation. The first is section 4, which reads as follows:

Termination. This proclamation shall expire 60 days from its effective date and may be continued as necessary. Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether [the President] should continue or modify this proclamation.

The effective date of the proclamation is April 23, 2020, and 50 days from this date is June 12, 2020. Because of this section, we anticipate an announcement to be made any day now.

The second noteworthy section is number 6, which reads as follows:

Additional Measures. Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to [the President] other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

Whereas section 4 threatens an extension of proclamation, section 6 threatens to expand the restrictions to nonimmigrant visas. While what happens next has yet to be determined, here are some possible outcomes based on what the American Immigration Lawyers Association knows so far:

  • The proclamation could bar the entry of nonimmigrants in the H-1B, H-2B, L-1A, L-1B, and J-1 categories (with a possible exemption for L-1A intracompany managers and executives)
  • The proclamation could be in effect for as long as 90 to 180 days
  • The proclamation could include some exceptions, such as COVID-19 related exemptions for physicians and other health care workers, food supply related exemptions, and U.S. workers who conduct additional recruitment efforts to show they cannot find ready, willing, or available U.S. workers

Because the proclamation could be amended with little notice, many employers are advising their foreign employees to reenter the United States as quickly as possible if they are able to do so.

It is important to mention that sections 212(f) and 215(a) of the Immigration and Nationality Act grant the President authority to restrict the entry of persons into the United States. Any attempt to modify immigration benefits for those already in the United States would require either an act of Congress or proper rulemaking procedures before such modifications can be implemented.

Our immigration team strongly feels that the extension and/or expansion of the proclamation is not only unnecessary but is completely inconsistent with the latest job reports showing higher-than-expected improvements in the unemployment rate and the President’s ongoing messages of an increasingly successful economic recovery.

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