With weeks to go in his administration, President Trump has extended two controversial presidential proclamations that would prohibit many immigrant and nonimmigrant visa holders from entering the United States until months after his term expires. On December 30, 2020, President Trump issued a Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market, which extends until March 31, 2021, the earlier proclamations that had been set to expire at the end of 2020. According to the White House, the purpose of the extension is to help shield American workers from the continuing impacts of the coronavirus pandemic.
“The 2019 Novel Coronavirus (COVID-19) continues to significantly disrupt Americans’ livelihoods,” President Trump stated in the proclamation. “The effects of COVID-19 on the United States labor market and on the health of American communities is a matter of ongoing national concern, and the considerations present in [the prior proclamations] have not been eliminated.” Specifically, the President stated that while the unemployment rate as of November 2020 was lower than it had been during its highest point in April 2020, there were still nearly 10 million fewer jobs in November 2020 than in February 2020. President Trump also cited increased infections worldwide and restrictions on businesses in the United States as factors supporting the extension.
President-elect Joe Biden could revoke, modify, or supersede these proclamations once he assumes office on January 20, though he has not yet said whether he would do so. On his campaign website, however, Mr. Biden pledged a break with President Trump’s immigration policies. “The United States deserves an immigration policy that reflects our highest values as a nation,” the website states. “Today, our immigration system is under greater stress as a direct result of Trump’s misguided policies … .”
A. The Two Extended Proclamations
On April 22, 2020, President Trump issued the first of the two proclamations he extended on December 30. Proclamation 10014 of April 22, 2020 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), initially suspended for 60 days travel into the United States by immigrant visa holders. The proclamation prohibited anyone from entering the United States for immigration purposes if:
- They were outside the United States as of April 23, 2020;
- They did not have a valid immigrant visa that was effective as of April 23, 2020; and
- They did not have an official travel document other than a visa (such as a transportation letter to travel to the United States, an appropriate boarding foil, or an advance parole document) that was valid on April 23, 2020, or issued on any date thereafter that permitted the holder to travel to the United States and to seek entry or admission.
The proclamation made nine exceptions, including for lawful permanent residents, children under the age of 21 and/or the spouses of American citizens, and healthcare professionals seeking to enter the United States to help combat COVID-19.
On June 22, 2020, the President issued Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). This proclamation applied to H-1B (highly skilled workers), H-2B (seasonal, nonagricultural workers), L (intracompany transfers for managers and those with specialized knowledge) and certain J (exchange program) visa holders. H-1B and L visa holders, in particular, are prominent in the technology and healthcare sectors. The proclamation initially suspended the entry of these nonimmigrant visa holders, along with their spouses and children, into the United States through December 31, 2020 if:
- They were outside of the United States as of June 24, 2020;
- They did not have a valid nonimmigrant visa that was effective as of June 24, 2020; and
- They did not have an official travel document other than a visa (such as a transportation letter to travel to the United States, an appropriate boarding foil, or an advance parole document) that was valid on June 24, 2020, or issued on any date thereafter that permits the holder to travel to the United States and to seek entry or admission.
The June 22 Proclamation also extended the expiration date of the April 22 Proclamation to December 31, 2020. Both proclamations applied prospectively and did not apply to visa holders already in the United States.
In October, Judge Jeffrey S. White of the US District Court for the Northern District of California issued a preliminary injunction prohibiting the Trump Administration from enforcing the June 2020 Proclamation against the members of the named plaintiffs—which included the National Association of Manufacturers, the US Chamber of Commerce, and the National Retail Federation—in a case challenging the legality of the proclamation. The government has appealed that preliminary injunction to the Ninth Circuit, where arguments are scheduled to take place on January 19.
B. Related Developments
The April 22 Proclamation directed the Secretary of Labor and the Secretary of Homeland Security to “review nonimmigrant programs and  recommend  other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” The June 22 Proclamation additionally directed the Secretary of Labor and the Secretary of Homeland Security to consider, among other things, promulgating new rules related to H-1B visas. (The Trump Administration’s Executive Order 13788, Buy American and Hire American, see 82 FR 18837 (April 21, 2017), also suggested reforms to the H-1B visa program.)
In October, the Department of Labor (DOL) and the Department of Homeland Security (DHS) each promulgated new rules for H-1B visas. The DOL rule increased the prevailing wage levels that are required to be paid to H-1B visa holders, while the DHS rule included, among other changes, narrowing the definition of “specialty occupations” eligible for H-1B visas and shortening visa terms from three years to one year. In December, three federal courts invalidated all or certain aspects of the new rules because the administration had not followed the legally required notice and comment periods for new rules. Judge White in the Northern District of California set aside the new rules promulgated by both DHS and DOL, while the District Courts for the District of Columbia and District of New Jersey each invalidated the DOL rule. All three courts rejected arguments by the Trump Administration that, largely because of the economic impact of the COVID-19 pandemic, the notice and comment periods should have been excused for “good cause” under the Administrative Procedure Act.