No, 'tis not so deep as a well nor so wide as a church-door, but 'tis enough, 'twill serve.
— Romeo and Juliet
Like the wound suffered by Shakespeare's Mercutio, the State Department's August 12 ruling regarding exceptions to the recently announced ban on foreign worker admissions will be a fatal one (except in a handful of cases). For an account of the earlier order, dated June 22, see here.
By my count, the newly announced exceptions will cover eight different classes of foreign workers under a myriad of different kinds of exceptions (or excuses) listed in seven pages of single-line text, which is 3,101 words long.
According to an immigration lawyer, quoted by Law 360:
[T]he new exemptions will likely still keep entry-level hires blocked from entering the U.S. on new visas, but will allow more essential and experienced employees to take jobs in the U.S.
"It feels like a real unraveling of the proclamation," she said. "I think this looks like the government bending to pressure from the private sector."
My colleague John Miano, also a lawyer, makes a broader statement: "If you go through them you will find that everyone is exempted."
The classes of foreign workers excepted, under a variety of different circumstances, include H-1B ("highly skilled" workers), H-2B (non skilled, non-ag workers), H-4 (spouses, usually, of H-1Bs), J-1 (exchange students and scholars), J-2 (the latter's spouses and children), L-1A and L-1B (employees of multi-national corporations), and L-2 (their spouses and children). H-2A farmworkers were exempted under earlier rulings.
Every one of these aliens is entitled to work in the United States once they secure the needed visa.
The circumstances under which a waiver can be granted (by a U.S. consular officers) include:
- Those "seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification";
- Individuals "whose travel would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees"; and
- "National interest exceptions ... for those who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a national interest exception to P.P. 10052."
None of these exceptions are needed by foreign workers already in the country, just those on the outside seeking to return or to take up new jobs.
So what do we have left of the earlier order? It would appear that some new hires among foreign workers who are currently outside of the nation will not get visas. Those returning from abroad will have to get permission from our already overworked consular officers, which will mean delayed returns for some to many. Then there is an anomaly in the State Department's new policy statement — I did not see any provision for granting renewed visas to F visa holders who have those subsidized Optional Practical Training jobs. Most probably are not out of the country and do not need them.
And, of course, this is another indication that the Trump administration seems not to want to inconvenience the private sector by seriously reducing the foreign worker population.