New Immigration Pause Executive Order: What’s Different?
By RJ Hauman and Preston Huennekens | June 2020
Since February, unemployment has skyrocketed as a result of the COVID-19 economic and health crisis, leaving millions of Americans without jobs across nearly every industry. More than 17 million jobs have been lost in service industries in which employers are seeking to fill positions tied to the H-2B guestworker program. At the same time, nearly 20 million American workers lost their jobs in white collar industries where employers are still requesting H-1B and L guestworkers to fill positions. It doesn’t end there. The unemployment rate for young Americans who compete with J visa applicants and guestworkers under other programs hovers around 25%. Although businesses have begun to reopen and jobs continue to return, around 40 million Americans remain out of work.
While it should have been clear that the entry of additional workers through the H-1B, H-2B, J, and L guestworker programs presents a threat to employment opportunities for Americans affected by the COVID-19 crisis, President Trump’s April 22 immigration executive order didn’t address these programs. It temporarily halted – with major exceptions – only some immigrants applying for permanent visas from outside the United States. Since the order did not address any guestworker programs, which have a far greater effect on wages and job opportunities, FAIR blasted it as being ineffective and urged President Trump to issue a new one.
Soon after the executive order was issued, a Washington Post poll found that more than 60% of Americans not only supported it, but wanted a broader pause while the country continues to recover. A Zogby Analytics poll commissioned by FAIR also found that voters in ten battleground states supported travel and immigration restrictions. By margins of about 2 to 1, voters responded that they supported reductions in immigration and guestworker admissions during the crisis. Strong majorities of voters in all ten states also agreed that limiting admission of new immigrants and guestworkers will improve the chances of laid-off American workers being rehired.
Responding to increased public support and external pressure led by FAIR, President Trump signed a new executive order on June 22 that extends his initial one and expands the measure with an additional suspension of several guestworker programs – H-1B, H-2B, certain J, and L – preserving jobs for Americans.
What’s in it?
The Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak is nine sections long and details the president’s authority to make such a proclamation, who the order applies to, who it exempts, and why the administration chose to pursue this action. Similar to the president's first order, the expanded proclamation justifies this action by citing the effects that immigrant workers have on Americans competing for limited jobs, particularly in the service sector of our economy.
The executive order was issued through authority under sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(f) and 1185(a)) and section 301 of title 3, United States Code. Notably, when the president “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” Section 212(f) gives the president broad authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Section 212(f) is a powerful tool at the president’s disposal. His use of 212(f) largely prevents the possibility of a successful legal challenge against the executive order by open borders advocates, corporate lobbyists, and massive tech companies.
Who is affected?
The new executive order halts the issuance of nonimmigrant employment visas to guestworkers in the H-1B, H-2B, J-1, and L-1 categories, with some exceptions. The Trump administration estimates that this will free up hundreds of thousands of jobs for American workers.
The temporary ban does not apply to medical professionals involved in COVID-19 treatment and research, students, workers involved in the food supply chain (H-2A), as well as those “necessary to facilitate the immediate and continued economic recovery of the United States.” While the latter reads like a glaring loophole, FAIR received assurances from federal agencies that strict criteria will be developed during implementation, and each request will be handled on a case-by-case basis.
It also extends the April 22 executive order that bans some of those applying for immigrant visas (green cards) from outside the United States. It applies to aliens seeking employment-based immigrant visas, aliens applying for family-based immigrant visas who aren’t nuclear family members, and those seeking entry through the Diversity Visa Lottery. Unfortunately, due to broad exemptions that remain, this will only affect less than 10 percent of the 1.1 million or so who seek permanent residency every year.
How long will it last?
This order will last until the end of the year, on December 31, 2020 and can be extended as necessary.
What is FAIR’s position?
After the April 22 original proclamation, FAIR stated that:
Not only does the exemption filled executive order apply to a small number of immigrants, it completely ignores what is arguably the largest component of foreign-born impact on the welfare of American workers: out of control guestworker programs including H-1B, H-2A, H-2B, L-1, and J-1. These programs contribute to a yearly flow of around one million foreign workers, many of whom stay for years while occupying jobs that could be held by Americans… In order to truly address the problem, FAIR is calling for a new Executive Order to be issued that includes substantially all forms of immigration – especially guestworker programs. This would help Americans out of the labor force come back in, both now and when the economy finally begins to recover.
The new executive order accomplishes much of what FAIR argued and advocated for over the past few months. President Trump and his administration finally placed restrictions on the H-1B, H-2B, L-1, and J-1 programs, keeping hundreds of thousands of foreign guestworkers from entering the United States and filling jobs that would otherwise go to Americans.
In response to this resounding victory for the American worker over the business lobby, FAIR President Dan Stein said the following right after the executive order was signed:
Today’s Proclamation suspending the admission of foreign guestworkers is welcome news for the tens of millions of Americans who have lost jobs as a result of the COVID-19 crisis. Among the recently unemployed are workers of all skill levels who are ready, willing, and able to fill jobs as our economy recovers. President Trump is using his suspension authority in precisely the manner envisioned by the congressional framers of our immigration law, who envisioned such an economic crisis.
President Trump has repeatedly promised that he would put American workers first, and to his credit, he did just that. For the most part, the president withstood intense pressure from powerful business interests that continue to demand more cheap foreign labor, even as they have laid-off an unprecedented number of American workers over the past three months. We fully expect that the agencies charged with carrying out this Proclamation in furtherance of the president’s intent to aid struggling American workers will resist pressure from corporate lobbyists to abuse their discretionary authority.
FAIR’s experts continue to evaluate the effects of this executive order and address it in the media. Below are relevant materials:
- FAIR Press Release: Trump Puts American Workers First by Halting Foreign Guest Worker Admissions [Link]
- FAIR Press Release: New Zogby Poll in Battleground States Reveals Broad Voter Support for Reduced Immigration During COVID-19 Crisis [Link]
- May Letter from FAIR President Dan Stein to President Donald Trump [Link]
- April Letter from FAIR President Dan Stein to President Donald Trump [Link]
- April 22 Executive Order Resource Page [Link]
- ImmigrationReform.com, FAIR’s Official Blog