A late-night tweet by the President has employers who rely on guest worker programs searching for answers on their employee’s futures. President Donald Trump announced via Twitter on April 20 that he intends to issue an executive order “temporarily suspend[ing] immigration into the United States.” The President explained the temporary ban is necessary to protect American jobs, as stay-at-home orders strain the economy.
The Scope of the Immigration Suspension
While the language is still being finalized, the order is expected to temporarily halt the issuance of new green cards and work visas. It is not immediately clear what impact the order might have on the E, H-1B, H-2A, H-2B and L visa programs. As to the duration of the suspension, administration officials have indicated a 120-day suspension is possible in light of the COVID-19 pandemic.
Impact on Agribusiness
The President’s tweet comes on the heels of the U.S. State Department’s April 20 announcement that the United States, Mexico and Canada “have each agreed to extend restrictions on non-essential travel across their shared borders for 30 additional days.” Many U.S. farmers have expressed uncertainty in recent weeks, fearing their crops will go unharvested without foreign labor. But when the U.S.-Mexico border closed on March 21, prohibiting non-essential travel, H-2A visa holders were deemed “essential.” Likewise, the U.S. Departments of Homeland Security and Agriculture responded to agri-business concerns on April 15 by easing restrictions on the H-2A Visa program. Significantly, before a farm may obtain H-2A labor certification, it must demonstrate that there are not enough U.S. workers willing to fill the farm’s needs. Many U.S. farms have already completed the H-2A certification process and are now awaiting the arrival of their farmworkers. But unless U.S. agriculture is exempted from the President’s order, farmers who await guest labor arrivals in the next 120 days may be left without staff.
Impact on Business Immigration
What impact the anticipated order might have on other employment-based visas (like the E, H-1B and L visas primarily used in the business community) is unclear. The President offered no further details on what categories of immigration would be suspended, including whether further restrictions would be placed on immigrants and nonimmigrants already working legally in the U.S. The H-1B visa program – already troubled by this year’s registration process – generally permits entries on Oct. 1 of each year. Presumably, the President’s order would expire by that time. Likewise, E and L visas typically have processing times of approximately 120 days (when premium process is not allowed) such that the order would likely only apply to individuals who currently hold approved petitions and would have intended to enter the United States in the next few months.
What Employers Should Do Now
Employers who rely on guest worker programs and other employment-based visas should await the President's executive order and then adapt their business expectations accordingly. Those employers currently holding approved visa petitions should determine whether their employees can enter the United States before the executive order is effective. If those employees cannot enter because of the executive order, then employers must determine whether entry would still be necessary after the anticipated 120-day suspension period. Finally, employers who were already planning to apply for work visas should consider maintaining those plans. The complex U.S. immigration process was protracted before the onset and aftermath of COVID-19. Employers who initiate the process now likely will have the upper hand by the time the labor-market scenario returns to pre-coronavirus conditions.
Please contact Brandon Davis, Laura Buck, Stephanie Poucher or Phelps’ Immigration and Labor and Employment teams if you have any questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.