Recent Press Reports on Changes to Immigration Policy Due to COVID-19

There have been numerous press reports recently suggesting that the Trump Administration will halt the issuance of new H-1Bs, and discontinue the Optional Practical Training ("OPT”) work authorization program for F-1 students. It has also been reported earlier this month that five Republican Senators have urged the President to suspend the H-1B program in the interest of protecting U.S. workers who are affected by the current high rate of unemployment. These reports are disquieting, not only for foreign workers and their employers, but for the country as a whole. Most serious academic research has long-since recognized that high-skilled foreign workers create more jobs for Americans than they take away. Suspending or further limiting the H-1B and F-1 OPT program would likely only increase a trend that is leading to the loss of more and more U.S. jobs: tech companies are moving large parts of their operations abroad, usually to countries with more progressive immigration policies.

That being said, we also believe that many of the articles in the news, including a recent article in the New York Times, are overstating the risk faced by foreign nationals who are now currently working lawfully in the US in H-1B or F-1 OPT status. These articles appear to be based on rumors that have not been confirmed. The views of the five Senators lobbying the President are also not necessarily representative of a majority of Senators and members of Congress, both Democrat and Republican. Although in his most recent Executive Order, which temporarily suspended green card issuance at consular posts abroad, the President suggested that he may issue a new Order aimed at restricting temporary foreign workers in the near future, as of today, the administration has not officially stated, or tweeted, that it will specifically target either of these programs. If the President were to attempt to suspend or substantially change the H-1B or F-1 OPT program by circumventing Congress, or bypassing the lengthy Federal rule-making process, his action would almost certainly be challenged in Federal court, and likely enjoined. Moreover, the rumors, if they are true, only suggest that “new” H-1Bs visas would be affected. This would presumably not apply to persons already in H-1B status, or persons who have already been selected for a new H-1B in the FY2021 cap lottery.

There have also been recent news reports suggesting that H-1B workers who have been laid off will begin accruing unlawful status, and/or be deported. These news reports may also be causing undue alarm for foreign workers. Persons in H-1B status as with most other temporary work-authorized immigration statuses, are granted a 60-day grace period after being terminated by their employer, or leaving their employment voluntarily. Although this grace period is “discretionary,” as a matter of practice, the United States Citizenship & Immigration Services ("USCIS") grants the grace period where the person has not violated their immigration status. Persons unable to find a new employer may leave the U.S. or change to another valid status, if available, before reaching the end of the grace period.

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