Jack's Prediction for Trump's new (additional measures) executive order for impact on H-1b and OPT.
Trump issued proclamation suspending immigrant visa issuance for 60 days on April 22, 2020. Section 6 of the proclamation states that additional measures shall be imposed. This additional measure section prompted widespread fear that H-1b and OPT may be suspended as well. This fear is heightened by letters from Congressmen to Trump suggesting suspension of H-1b and OPT to help with COVID-19 job market recovery.
Immigration & Nationality Act Section 212(f) - ("authorizes the President to suspend the entry of all aliens or any class of aliens whose entry he finds would be detrimental to the interests of the United States.")
Trump v. Hawaii (Supreme Court)
In Trump v. Hawaii (2018), the Supreme Court held that the breadth of the restrictions on nationals of seven countries contained in the third iteration of Trump's "Travel Ban" did not exceed the President's authority under Section 212(f). The majority stated that Section 212(f) "exudes deference to the President" and grants him extremely broad power to impose entry restrictions
Before Trump, each United States president have invoked Section 212(f) at least once since Reagan. Invocation have become more frequent in recent administrations, particularly during the Trump Administration. (see this link for all invocation of Section 212(f) by US presdients.
Trump's 2019 proclamation requiring immigrants to secure health insurance before entering the United States are currently stopped by Federal court awaiting litigation; meanwhile, the order against "public charge" is allowed to be implemented pending appeal.
It is likely that the additional measures imposed by Trump may temporarily halt the entry of H-1b and F-1 visa (OPT) holders who are currently outside the United States and are returning for employment. Section 212(f) allows Trumps to deny entry of aliens, and given the precedent from Trump v. Hawaii, this type of restriction will likely be immune from legal challenge.
It is unlikely for Trump to halt H-1b and OPT approval by Department of Homeland Security because Section 212(f) does not grant the president power to deny approval of these nonimmigrant benefits because they do not concern an entry into the United States. If Trump's additional measure seeks to halt H-1b or OPT approval within the United States, such measures are likely to be stopped by Federal Court. It is unclear, however, whether courts will allow the policy to go into effect while the matter is litigated. If the court strikes down the order but allow it to go into effect pending appeal, chaos and irreparable harm will befall H-1b beneficiary and OPT applicants for several months. This is the worst case scenario.
Recommendation to clients
1. If you are in possession of an F-1 visa or H-1b visa and you have employment in the United States, return to the United States as soon as possible, or be prepared to be kept out for more than 6 months to a year.
2. For H-1b cap-subject cases, file your H-1b petitions as soon as possible to avoid collusion with the new policy.3. Keep your ears to the ground for any changes in the policy and the detail of the additional measures as soon as they are implemented.
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