The Trump Nonimmigrant order and Medical Professionals

The long-anticipated Executive Order (“EO”) barring many work-authorized nonimmigrants has now been issued by the Trump administration. With the final text being issued, immigration professionals at Bunger and Robertson can now provide some concrete advice on how this will impact current and future clients. Having said that, there are still some uncertainties in the EO itself that will take time to resolve themselves through courts, amendments, interpretations, and administrative adjudication.  I hope this article can provide insight for medical professionals on the issue. Some chief takeaways for medical professionals from the EO:

1. The EO bans all potential H, certain J (excluding J medical residents), and L visa applicants abroad from entry into the country until the end of 2020, subject to certain exemptions below.
2. It does exempt all individuals inside of the United States as of June 24, 2020. This exemption will cover the majority of current H-1B, H4, J1, and L1 medical professionals and the vast majority of most prospective employees to an organization, including most current J1 resident physicians and F-1 foreign students.  Although it does exempt most current foreign medical professionals and visa holders, visa stamping at consulates abroad will likely be affected by this order. Currently most embassies and consulates abroad are closed due to Covid-19 to all but emergency appointments, largely for foreign healthcare workers. A consequence of this order is to make them unlikely to fully reopen their doors through the end of 2020. We will have to wait-and-see what happens with embassies and consulates reopening and scheduling.
3. As also predicted by most analysts, there is an exemption for medical professionals involved in the fight against Covid-19. However, this exemption is more restrictive than in prior EOs issued by the Trump Administration. Specifically, this restriction requires that the foreign medical personnel provide “care to individuals who have contracted Covid-19 and are currently hospitalized.” The EO instructs the Department of Labor, Department of State and Department of Homeland Security to flesh out regulations to provide standards on how this provision (and others relating to Covid-19 research professionals) will be interpreted. There is no required timeline on when these regulations will be released. Until they are released, it will be largely up to individual border and visa officers to determine whether the medical professional will fall into this exemption. As a result, an incoming foreign medical professional should anticipate delays and a possible denial if availing themselves on this exemption. Some examples may help to illuminate the various situations that medical professionals will see over the coming months.:
   • It appears from the EO that a foreign primary care physician currently abroad who only worked in a non-hospital clinical setting would not be eligible to enter the country since their patients are not currently hospitalized, even if that primary care physician treated and diagnosed Covid-19 patients.
   • In the situation above, if the foreign physician was a Hospitalist or regularly performed hospital rounds on Covid-19 patients, they would presumably be eligible for the exemption. Note that presumed eligibility does not equate to guaranteed receipt of an exemption.
   • It is uncertain whether ancillary foreign medical professionals such as medical technologists would be exempted since the definition of “medical care” is not defined in the EO. For example, whether conducting diagnostic tests on hospitalized Covid-19 patients would be considered medical care. It seems unlikely that this would fall into the definition of medical care, but there is a colorable argument for this position.  At Bunger & Robertson, we will have to closely monitor the situation.
   • For incoming medical residents on an H-1B visa, starting on July 1 (as most residency programs do) could be difficult since such the issuance of such exemptions require various governmental approvals.
4. The EO has some other exemptions, some that are likely unintended:
   • On its face it exempts Canadian Citizens since it only blocks entry by visa, which Canadian nationals do not need to enter the US on an H status (a Canadian citizen can enter by port of entry processing). This is almost certainly a mistake caused by poor drafting, but a common one. Bunger and Robertson will keep an eye as to whether the administration amends this EO to try and clean up this method of entry.
   • The EO exempts any individual with a valid nonimmigrant visa in their passport on June 24, 2020. Importantly, the EO does not mandate that the valid nonimmigrant visa be in the same category as the one they enter the country with. For example, a potential H-1B foreign medical professional abroad with a valid B tourist visa could apply for a new H-1B visa abroad and enter the country as an H-1B as exempt from this order because they possessed a valid B visa on the effective date of this order. Again, this appears to be a drafting oversight, so it may be amended in the future.
   • It also exempts spouses of US Citizens so if a foreign medical professional is married to a US Citizen, they can ignore this EO regardless of where they were located on June 24, 2020.
   • There is also a general “national interest” catchall category that could encompass a number of idiosyncratic cases, but it is uncertain what the administration would include in this category.
5. As also anticipated, there is a provision in this EO that instructs the Department of Homeland Security and the Department of Labor to propose more restrictive regulatory measures on future H-1B and employment based permanent resident benefits. This is the provision that could impact current medical professionals, and future renewals. There is no strict timeline for when these measures will be proposed and what they may be. There would need to be some period for rulemaking and comment, although it seems likely the administration would like to abbreviate the rulemaking and comment period. It also seems highly likely that any such regulatory changes would be challenged in federal courts, a process that would likely run through the election. Bunger and Robertson will be following any such changes closely and keep you informed.
6. The EO is set to run through the end of 2020 with the possibility of extension. While in place the EO will be reviewed every 60 days for necessary modification. The future of the EO into 2021 will be largely contingent upon election results in November. Additionally, there is an expected legal challenge to the EO from the major tech companies, and a significant possibility of an injunction. Since this EO is set for modification is important to contact your elected representatives to provide feedback.

If you have additional questions please contact the immigration professionals at Bunger and Robertson for a consultation.

Link to full text of the EO: Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak