We have been tracking certain reports that an additional Presidential Proclamation barring entry of certain nonimmigrants appears to be imminent. Here is what we know at this point. This news item is courtesy the American Immigration Lawyers Association

  • Timing
    • The President may be making a decision on the scope of the proclamation as early as today.
    • Unclear how quickly the proclamation would be issued after that, but will likely come the last two weeks in June, and as early as June 15.
    • Could be in effect for as long as 90 -180 days.


  • Possible Substance:
    • Proclamation barring entry to the US for L-1, H-1B, H-2B and J-1 for a temporary period pursuant to INA 212(f) and 215(a).
      • Intent is to impact H-1B cap cases with 10/1/20 start dates.
      • No consensus on what will happen for L-1s.
      • Not clear which of the  J-1 subcategories would be impacted, but likely to impact the SWT program, camp counselor, intern and trainee programs.
    • The proclamation will announce a temporary ban on nonimmigrant worker entries but will NOT announce or describe other substantive policy changes which are expected to follow in regulatory proposals.
    • The proclamation will have a number of exceptions, to be implemented by agency guidance, for example:
      • COVID related exemptions, such as health care workers
      • Food supply related exemptions
      • Competitive recruitment efforts.


  • Subsequent Regulations – Potential rulemakings in the work as early as July on H-1B, OPT, and H-4.  While these should be issued as notice and comment rulemaking, there is certainly a valid concern that they could invoke the good cause exception and try to go to final rulemaking – although that will be very susceptible to challenge.
    • Promulgate regulation changing post-completion OPT and STEM OPT extension to solely a 12-month OPT program by rescinding the STEM OPT regulation finalized March 2016.
    • Issue the H-1B strengthening regulation
      • Focus on employer-employee relations, specialty occupation definition, wage levels.
      • Possible exorbitant fee of $20,000 (or higher) to be added, although not sure what legal authority they would have to do that by regulation
    • Rescind the H-4 Employment Authorization Rule
    • Possible rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles.


What can you do: 

Currently, the key focus on influencing the scope of an expanded Proclamation has been high level business executives reaching out to key players to underscore the harm that the expansion would have on business:

  • WH Outreach to the President, Jared Kushner, Larry Edlow,
  • Agency Outreach to the Secretaries of Labor and State. 
  • Congressional Outreach Senate Republicans and House Republican leadership.

These talking points may be helpful:

  • Industry specific unemployment data could be shared if it shows that the unemployment rates during the pandemic have remained low.
  • The need for an EO banning nonimmigrants is inconsistent with the latest jobs report showing a significant improvement in the unemployment numbers and the president’s messaging that recovery has begun and is much more successful than originally anticipated.  If the economy is rebounding, why do we need to cut off supply to critical workforce.
    • Clearly there is no need for the Proclamation to be expanded.