On June 22, 2020, President Trump issued a new proclamation temporarily suspending entry into the United States of certain nonimmigrants seeking to enter on the popular H-1B (specialty occupation), H-2B (seasonal worker), L-1 (intracompany transferee), and J-1 (exchange visitor) visas. The proclamation, titled Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, establishes new temporary restrictions on H-1B, H-2B, L-1, and J-1 nonimmigrant (temporary) visas and extends its predecessor proclamation of April 22, 2020 which suspended the entry of certain aliens on immigrant (permanent resident) visas for 60 days. The new proclamation became effective on June 24, 2020 and is currently set to expire on December 31, 2020. However, it may be continued as deemed necessary to aid economic recovery and unemployment due to the COVID-19 pandemic.
The Suspension. This latest proclamation suspends entry into the U.S. of any foreign national pursuant to the following nonimmigrant visas:
- H-1B or H-2B, and any foreign national accompanying or following to join the principal visa holder;
- J-1, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join the principal visa holder; and
- L-1, and any foreign national accompanying or following to join the principal visa holder.
Its Application. The suspension imposed by this latest proclamation applies only to any foreign national who (1) was outside the U.S. on the effective date of the proclamation (June 24, 2020); (2) did not have a valid nonimmigrant visa as of June 24, 2020; and (3) did not have an official travel document other than a visa that was valid on June 24, 2020.
The Exemptions. This proclamation expressly exempts from coverage lawful permanent residents of the U.S.; any foreign national who is the spouse or child of a U.S. citizen; any foreign national seeking to enter the U.S. to provide temporary labor or services essential to the food supply chain; and any foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their designees. For purposes of the “national interest” exemption, the proclamation directs the Secretaries of State, Labor and Homeland Security to establish qualifying standards to include those foreign nationals who: are critical to the defense, law enforcement, diplomacy, or national security of the U.S.; involved with the provision of medical care to COVID-19 patients; involved with medical research at U.S. facilities to help combat COVID-19; or otherwise necessary to facilitate U.S. economic recovery. The proclamation indicates that adjudicating consular officers abroad retain discretion to determine whether a foreign national establishes his/her eligibility for an exemption.
Additional Measures. In addition to the suspension, the proclamation directs the Secretary of Labor and/or Homeland Security to take appropriate action that would further impact nonimmigrant and immigrant visa processing, including: (1) ensuring that those who have already been admitted to the U.S., or are seeking admission on an EB-2 or EB-3 immigrant visa or H-1B nonimmigrant visa do not disadvantage U.S. workers; (2) investigating Labor Condition Applications in connection with the H-1B process; (3) addressing the efficient allocation of visas and ensuring the presence of H-1B workers in the U.S. does not negatively impact U.S. workers; (4) ensuring that a foreign national will not be eligible to apply for a visa or admission into the U.S. until he/she has completed biometric information; and (5) preventing certain foreign nationals from obtaining authorization to work in the U.S. if they have final orders of removal, are inadmissible or deportable from the U.S., or have been arrested for, charged with, or convicted of a criminal offense in the U.S.
What’s Left? It is important for employers to recognize that this proclamation does not preclude all entry of foreign nationals who hold valid nonimmigrant visas from entering the United States. This suspension expressly applies to individuals who were outside the U.S. as of June 24, 2020, did not have a valid nonimmigrant visa (or alternative travel document) as of that date, and seek to apply for one of the restricted nonimmigrant visas set forth above in order to enter the country. Changes of status and extensions of stay in the U.S. remain available. In addition, the proclamation does not restrict other nonimmigrant worker categories such as the TN, E-1, E-2, E-3, and O-1 visas.
What’s Next? While the proclamation remains in effect until December 31, 2020, it may be continued or possibly modified as necessary. Notably, the Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, is required to recommend any modifications to this latest proclamation within 30 days of June 24, 2020 and every 60 days thereafter. This latest proclamation and its restrictions, additional measures, and further review create an evolving situation that requires continued attention and monitoring.
Eric J. Holshouser
Samuel J. Horovitz
Robert G. Riegel, Jr.
Michael J. Lufkin
Kathryn K. Rudderman