Voice of Immigration

Trump OFFICIALLY Bans H-1B Visa and 3 Other Non-Immigrant Visas! What Visas Can Be Filed?

Episode Summary

It is official! President Trump has signed the final executive order banning one of the most popular US non-immigrant work visas, the H-1B visa. Trump has also banned 3 other non-immigrant visas in the newest executive order.

Episode Notes

As of June 22, 2020, the #H1B, #H2B, #L1, #L2 and #J1 non-immigrant visas will be temporarily banned in an attempt to help restart and lower the historically high unemployment rate of 13.3% due to COVID-19 in the USA. Jon Velie, CEO of OnlineVisas, shares the details of Trump's new Executive Order stating the ban on H-1B and 3 other non-immigrant visas in the USA. He breaks down all the need to know information in this proclamation including which industries may be the most affected.

In the newest proclamation from Trump, it is reported that 20 million people have lost jobs industries that are requesting H-1B and L-1 visas for their employees. Trump would like to lower the unemployment rate and get American's hired in these industries first before approving new non-immigrant US visas. The executive order is short, missing some details. Jon Velie, expects there to be more regulations to come down the pipeline which may include heavy fee increases for future non-immigrant visas. Get the details by watching this video and subscribe to stay in the loop of more breaking immigration news.

More info on Trump banning H-1B, H-2B, L-1, L-2 and J-1 Visas

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Episode Transcription

Hi, I'm Jon Velie, CEO of OnlineVisas, and this is Voice of Immigration. Today marks a very important day in immigration as this is the day that President Trump entered a proclamation suspending entry of aliens who present a risk to the US labor market following the Coronavirus outbreak. In effect, President Trump banned work visas. We're going to go through what work visas he banned and what can still be filed. We'll dig into this. Let's drink a little coffee and roll up our sleeves and get into this.

In other news, the USCIS filed a regulation regarding an asylum that we will deal with in another thing, but a very, very long 300 plus regulation revision for those folks ... restore integrity to the immigration system. A lot of immigration stuff went down today, but we're going to focus right now on the proclamation of the President that came down late today, about five o'clock Central time, six o'clock Eastern time, end of the day. Lots of articles today on a lot of different things on what this would be. We've been seeing it coming down the pipe, and it finally dropped and now we're doing this. We're going to see a ban H-1B, H-2B, L-1, J-1 visas until December 31st, 2020. We thought we might go through October. We thought we might have something before the election so that another event could happen with the President as he is running for reelection for the next term of presidency.

Now, what didn't it do? Well, one of the things is this is not for the filing of anything inside the United States. If an H-1B is extending its H-1B or amending their H-1B, an extension would be in the same position for a longer period of time. An amendment would be in a different position, potentially even a different company. You can still do that and you can change status. If someone is on an F-1 student visa or a B-1 visitor visa, they can change their status to any of these visas if they're in the United States.

There are also some things that weren't in there. We were looking out for maybe the employment authorization document to be taken away from either H-4s or students on their OPT. OPT stands for Optional Practical Training. That was not covered in this proclamation, so lucky break for students and students who want to work, and those who are spouses who are working for H-1Bs. We thought those might've been on the plate. They weren't.

There was also a discussion of a very significant filing fee increase. We did not see that. However, we did see some very troubling language of a proposal for more regulations to come down the pipe that were not in this, pretty short, proclamation. In those regulations, we may see things like fee increases. We have heard of fee increases initially as high as $100,000. We saw fee increases maybe $20,000 most recently. None of those were covered, but in the regulations, we might see a change in that. There is some, I guess, looming language of what USCIS or Department of Labor might be coming up with to deal with a new regulation on that.

Let's dig into this. There were a couple of findings. It's mostly around wanting to protect US workers because while the rate of the 13.3%, which is the most extreme unemployment ever recorded by the Bureau of Labor Statistics in May, the rate of 13.3%, and they said a marked decline in April, millions of Americans still remain out of work. That's basically the reason for this.

There were a couple of findings that the President made. One was that the admission of workers within several non-immigrant categories pose a risk of displacing and disadvantaging United States workers during the current recovery is one of the findings. Under the extraordinary circumstances of economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs pose an unusual threat to American workers. For example, 17 million United States jobs were lost in industries for positions tied to the H-2B visa. During the same period, 20 million United States workers lost their jobs in key industries where employers are currently requesting H-1B and L workers to fill positions, and that the J immigrant visa hits a part of American workers that have a particularly high unemployment rate, 29.9% of 16 to 19-year-olds and 23.2% of 20 to 24-year-olds in that group that would be impacted by the J visa. This is to deal with that.

Now, what's really interesting ... I'm going to try to rub some analysis in this while I'm taking you through this. Now, remember, I just read this today. We're going to break this down further. Matter of fact, if you're on our YouTube channel, please subscribe to our channel and click for the updates and we'll keep you updated. We're going to try to do a webinar on this on Thursday, which would be June 28th, I believe. We'll try to do a webinar then on what you can still do as we dig in a little deeper and we see some deeper analysis and maybe understand what these regulations may do. We'll also tell you a little bit more, but I'm going to tell you my initial impressions on this. Also, go to OnlineVisas.com and you can ask for a strategy session if you want more information on this, but what we're going to do today is go through these and try to talk about what hasn't been impacted and what you can still do. That's what we're going to try to do.

One of the things in these findings is a little disingenuous because there are some factors out there. Now, remember, a lot of US employers are going to be hammered by this ban on the H-1B and L workers in particular, and the H-2B for that matter, but those are different types of employers. The H-1B and the L's are looking for professionals. What H-1Bs are, for those that have university degrees. A really big segment of that is the tech sector, but also universities higher in those areas, financial markets higher in those areas. We have an economy that's trying to come back online.

Now here's what's really interesting that was not a fact that was given in there because it didn't meet what they were trying to do. That's that despite the low unemployment rate that was even during the Coronavirus of 3% in the tech industry, that that actually lowered during the Coronavirus outbreak to 2.5%. There's been a lot of major players that have been trying to inform the President and the White House that, "Look, this isn't hurting the people you're trying to protect. Those jobs are right there." They could have done a carve-out for tech workers, but they didn't. We've seen that this White House has been at war with the tech sector and may have used the Coronavirus and not the statistics around that sector to punish them in this sort of scenario, so pretty unfortunate for that group.

We'll go on. Now, the President is saying that he can use 212(f) and 215(a) of the Immigration Nationality Act to do that. That's really for immigration into the United States. Now immigration is a term of art. These are not immigrant visas. He's trying to couple that with a security interest. Be aware of lawsuits, ladies and gentlemen. They may not have the authority to go after the non-immigrant visa the way he is doing it. Now, he has limited it to outside the United States, and that might be why, or probably likely why you don't see this affecting extensions, amendments, changes of status and those things. That's a good thing.

As we move on, and there's section two is the entry into the United States of aliens seeking entry pursuant to any of the following non-immigrant visas is hereby suspended and limited subject to section three. Section three is going to create some exceptions. Let's go through what two are. A, an H-1B or H-2B visa and any alien accompanying or following to join such alien. Now, I hate the word alien. These people are not from outer space. They're foreign nationals. They are citizens of other countries that are not permanent residents of the United States, but that's what the law says and how we're going, but that's my soapbox. I think the use of the word alien is just used to be a negative term for political purposes and foreign national is a much better one, but in any case, these citizens of other countries cannot come into the United States on an H-1B or H-2B visa without the exceptions we'll go through. That includes spouses and kids. That's H-4s on that deal.

The second one, section B, is a J visa to the extent the alien is participating as an intern, trainee, teacher, camp counselor, au pair, summer work travel program, and any alien accompanying or following such alien to that. Let's go through that. There's 14 J-1s. The intern and trainee, are really the big ones. Interns are those who are usually still in college. Trainees are usually management trainees. Those are out of college with a year of experience. Teachers, camp counselors, au pairs, that's a lot of them. It does not say, foreign medical graduates. That's a big J program. FMGs, or international medical graduates I think they're called now, are not part of this. That's a big save, I think, for those that are coming here, typically to do their residency. We'll dig in a little bit deeper on that when we do that, but that's just coming to mind.

The L visa and any alien accompanying or following such aliens, so that means the spouses on L-2s and kids. The L-1A is for managers and executives of international companies. Those are excluded, which is a really weird one. How are those people taking jobs from Americans? I mean, if an international company wants to send their managers or executives over here because they know the special sauce because they need to operate their company the way they do, you're really, really shackling investment into the United States. This is a crazy, nonsensical one. They could have said the L-1B, which is more for special sauce thing, but I think the L should really be off-limits. That's a crazy add right there, asking a foreign company to come in and you can only hire Americans and you can't bring your others in. Now, of course, that's the exception. Those that are already here can extend. Those that are on visitor visas can extend, but that's a tough one for those folks trying to come in and expand.

This is a really good time to invest in America. America needs investment. We don't need to just be borrowing money from Chinese banks, which is what we've done, Saudi Arabian banks, which is what we've done. With the L-1A, that's where companies are coming and investing and bringing business to the United States. We're trying to bring back business. Isn't that the whole thing that this has administration ran on? But right now, they didn't go that far, but we'll see whether or not non-immigrant visas are there too and whether or not we'll see some sort of injunctive thing. We've done a lot of things on John Wasden. Wasden Banias has won some really, really big cases on the H-1B and forced USCIS to settle. USCIS literally last week just came out with an H-1B memo, which still goes into play for those changes of status, but we'll see if John Wasden and his boys take on this thing right now, because this looks like it's smelling good for a lawsuit.

What else do we have? It does not have a non-immigrant visa that's valid on the day of the proclamation. It doesn't count those who have visas that are stamped in their passports outside the country. If somebody has visited, gone to see mom and dad, went back for Coronavirus to check on things, they can get back in if their visa is valid and scanned into their passport. They can't go to the consulate and get a new one. The consulates are closed anyway. This doesn't go into effect until the 24th. Today's the 22nd that I'm broadcasting this. You may see this later, but there are no consulates open. No one can run in tomorrow and get themselves their visa stamped unless it's an emergency situation. If you have an emergency situation, you might try to get in there and deal with that. Good luck to you on that one.

That's what that is. There are also things ... If you have an advanced parole document or other types of travel documents such as a transportation letter, an appropriate boarding foil, or an advanced parole document. Advanced parole are those travel docs that come to people who have pending green cards. If you have that, you can get back in the country and do your job on that. Then it doesn't cover green cardholders. That makes sense because a green card holder would not be applying for one of those visas. It doesn't include spouses or kids of US citizens. They can come in, I guess, on these visas, but if they're a spouse of a US citizen, they could also come in as a spouse of a US citizen. You could speed it up a little bit. I guess if you're married to a US citizen and you don't want to wait the year or so it takes to get a visa to be a spouse of a US citizen, you could file for one of these visas if one of these visas were available, or if you had a pending H-1B.

All the H-1Bs are due literally in the next few days. On the 31st of June, we have to file the H-1Bs. If they're outside the country, they're not coming in, but if they happen to be a spouse of a US citizen, they could, or I guess if they marry a US citizen between now and then, they can do that too. That's it.

Now some exceptions, so for those that provide temporary labor or services essential to the United States food supply chain. That could be H-2Bs in the food sector. What would that mean? I guess that means ... The H-2A is for agricultural work, so H-2Bs are for the other workers. If it's non-agricultural related but still in the food supply chain, I guess to do that you could work for chicken processors, Tyson Foods and those sorts of the world. They could still do H-2Bs, I suppose. Maybe somewhere in the restaurant industry, we'd have to dig in and see how far that goes, but it says food supply chain. I think a restaurant would be at the end of the food supply chain, but I'll leave that up to a little bit more analysis, but that jumps to mind.

There's a national interest. Now, this is determined by the Secretary of State or Homeland Security. If you go in and say, "Hey, I'm national interest," be prepared for that visa application to be sent off to somebody to decide it, but look, I mean, this has been an interesting aspect for attorneys, my brethren, to devise cases to say that our client, what they're doing is in the national interest so they need their H-1B. They need their L-1, those sort of things because here's what they're going to do when they come in. There's another ... We always look for the chess game here. We love those. If you need one of those, give us a call, sign up for a strategy session on OnlineVisas. We can talk about whether or not you are in the national interest in the job you're going to do. We can look at the national interest waiver criteria for that, or we can just make really great arguments and go from there. There are all sorts of things that might constitute national interest. Let's take a look at that.

Some other ones here are some, they just get a laundry list of things that are accepted, critical to defense, so if you're doing something that's attached to one of our military entities somehow. We've done some of those before. We did some L-1s and As and Bs for back during Desert Storm years ago, for those that built and maintained major tanks. Those sorts of clients that we did that for would be able to have an exception to this. Law enforcement, if you're helping law enforcement, so I guess certain police officers maybe on H-1Bs could work there, or H-2Bs. Diplomacy, that's an interesting thing, so I guess if you're related to a governmental entity somehow doing some diplomatic things. The national security of the United States, again, that's a broad net, but there's some stuff there.

Here's one that we expected, provision of care to individuals who have contracted COVID-19 and are currently hospitalized. How would an H-1B be a provision of that? I guess doctors and nurses. Registered nurses are H-1B positions. Doctors are H-1B positions. If they are coming in for hospital services that deal with COVID-19, then that works. Also involved in the provision of medical research at the United States facility to help the United States combat COVID-19. Others are necessary to facilitate the immediate and continued economic recovery of the United States. Oh, I love that one. Okay, lawyers, right there, creative thinkers, CEOs, those are the sort of things right there to facilitate the immediate and continued economic recovery of the United States.

What's your company doing to help with that? Broad ... Let's be creative there. I would say, use experts. I'd say use data. I'd say all those sorts of things. I think there's a way to do that. Again, if you want to talk about that, schedule a strategy session, drop us a comment below, and we'll have a conversation about that. We look forward to working with companies and individuals that might be able to do that and go from there.

That's that laundry list of exceptions. Let's go on. There is a don't try fraud or misrepresentation or you'll be removed type of section in here. Then it says that nothing will be construed or limit the ability of an individual to seek asylum refugee status, withholding a removal, protection of the convention against torture or other cruel, inhuman, or degrading treatment or punishment consistent with the laws of the United States. Look at some provisions to just exclude people on that, which makes some sense as long as it's not abused. That's it.

Now here's the piece that's scary. The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practical and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provide a benefit or are seeking admission or benefit pursuant to an EB-2 or EB-3 immigrant visa, those are the perm green cards, the labor certification green cards, or H-1B nonimmigrant visa, does not disadvantage United States workers.

What does that mean? Well, here's where they didn't get into in this proclamation, wages. They're saying labor is going to be involved in this and immigration. This is where they could go into a higher wage limitation. We thought that might happen and it didn't end up in the proclamation. They're asking for you to be eligible to apply for a visa for admission or entry in the United States or other benefit until such alien has been registered with biographical and biometric information, including but not limited, photograph, signatures and fingerprints. Well, we never had fingerprints before on the H-1B. We have them on the green cards. Look, that's not the biggest deal, but it could create some significant delays in people entering. They're going to have to have biometric information. Those usually go to all the three-letter agencies to determine if somebody comes in. A lot of times in the green card process those have delayed entry significantly. I don't know how fast that will happen and the practical effect of that if they're going to need to have fingerprints for every single visa that comes in, visitor visa or otherwise. We'll see what that means.

Here's an interesting one, take appropriate and necessary steps consistent with applicable law to prevent certain aliens who have final orders of removal, who are inadmissible or deportable from the United States, or have been arrested or charged with or convicted of a criminal offense in the United States from obtaining eligibility to work in the United States.

Now, there are things in place that deal with crimes, people that commit crimes, but this says a criminal offense. Before, we were dealing with felonies, any crimes of moral turpitude. That's fraud and those sorts of things. They had misdemeanors, but if it was for over one year of punishment. In some places, a DUI might have a three-year penalty. In others, it might've had a one-year penalty. It had to be over one year. A one year DUI was not grounds for denial, but a three year DUI is, and many other crimes. There are petty crimes, petty instances that have not been a basis for denying people entry into a country. That makes sense. These crimes, just any crime ... Crimes are different. I mean, somebody could have played a prank or done something young, been publicly intoxicated at one point. Should they never be able to get a visa into the United States because of that? I mean, it seems a little harsh, doesn't it? I mean, we don't do that to ourselves.

Anyway, that'll be interesting to see what that means. That's just part of these regulations that may be coming out. This is what they're looking for. As soon as practicable and consistent with applicable law, consider the promulgation of regulations to take other appropriate action regarding the efficient allocation of visas pursuant to a couple regulations, ensuring the presence in the United States of H1B non-immigrants does not disadvantage United States workers. Now, what does that mean? I don't know. Maybe it means that they're going to require the recruitment like they do in the EB-2 and EB-3, or even in the H-2B visa, where you have to run some ads. We'll see. This might require running ads to see if there are any Americans willing or able to do the job like they do in the green cards. That's going to add significant costs, but I can see where they're trying to do that if they're trying to protect jobs.

Look, that's the state. There are some other things. This goes into effect on June 24th. That's it. I'm talking about the new proclamation. We're going to try to have a PowerPoint on what that still means. What wasn't covered in this, in addition, again, student visas were not covered. OPT was not covered. Employment authorizations for H-4 workers were not covered. That's a relief for all of those people. In addition, the E-2 investor, not covered by this. Interesting that the L-1 was, E-2 investors not. I think both of them should have been not, but that's one man's opinion. The O-1 is not. Professional athletes are not. The O-1's for extraordinary ability. That's something you could look at. It didn't say the H-3. Trainees under the H-3 were left unharmed by that. That's a good type of exception to the J-1 or the H-1B for that matter. That's something that you could look at trying to do.

Look, if you still have questions, I'm sure you do, contact us, leave some comments here. We'll try to get back to it. Go to our website, OnlineVisas.com, and schedule a strategy session. These are interesting times. We're going to get through it. This is a temporary deal. If things get better, maybe they'll release this a little bit. Also, vote. If you don't like what's going on, vote for change. We're in America. We have a free society and that's what we can do, or let it be known to your congressmen and senators. I mean, a lot of congressmen and senators, even on the Republican side, put in letters about how this was going to impact our recovery. Again, statistically, for the H-1Bs in particular, especially in the tech sector, the unemployment rate went down during COVID-19. Why did that happen? Well, I'll tell you why that happened. A lot of people had to stay at home. Who was providing fixes to that? Who was providing technological advances and patches and ways for people to do that? Well, it was the tech sector. They are very reliant on the H-1B and they're needed.

Hey, think about all that stuff. We're going to dig into this more. I just want to give you some breaking news on that. I'm Jon Velie. I'm the CEO of OnlineVisas, and we're delivering dreams one visa at a time. Thanks a lot.