US President Donald Trump has extended the entry ban on H-1B, H-2B, L-1, and specific J-1 statuses as well as certain immigrant entries through March 31, 2021. The original proclamations were set to expire on December 31, 2020, and were extended on the very last day.

As previously indicated in a prior alert, the admission suspension applies to certain visa categories under specific conditions, as further detailed below:

• H-1B visa, and accompanying or following to join aliens (such as dependent family members).

• H-2B visa, and accompanying or following to join aliens (such as dependent family members).
• J visa, if seeking admission to participate in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and accompanying or following to join aliens (such as dependent family members).
• L visa (L-1A and L-1B), and accompanying or following to join aliens (such as dependent family members).

The suspension will only apply to individuals who

• are outside the United States as of the effective date of the proclamation; and
• do not have a valid nonimmigrant visa as of the effective date of the proclamation; and
• do not have a valid and official travel document other than a visa as of the effective date of the proclamation that permits him/her to seek admission to the United States.

Exemptions will continue to apply to certain individuals who

• were in the United States on June 24, 2020;
• were outside the United States on June 24, 2020, and hold a valid nonimmigrant visa or travel document as of the effective date of the proclamation;
• are US lawful permanent residents (i.e., Green Card holders);
• are foreign national spouses and children of US citizens;
• are seeking to enter the United States to provide temporary labor or services essential to the US food supply chain; or
• are entering for purposes which are deemed to be in the national interest.

Individuals whose visas are based on employment with a member of the plaintiff class in the lawsuit filed by, among others, the National Association of Manufacturers (NAM) and the US Chamber of Commerce that challenged the legality of the visa suspension are also exempt from the suspension. However, as a practical matter, their ability to secure a visa is limited in most instances due to consular closures and limited appointment availability.

The proclamation on immigrant entry was also extended through March 31, 2021, which essentially prevents US consular posts abroad from issuing employment-based, family-based, or Diversity Lottery immigrant visas while the proclamation remains in effect. There are limited exceptions for certain applicants, such as US lawful permanent residents; spouses of US citizens; minor children under age 21 of US citizens and prospective adoptees in the IR-4 or IH-4 visa classifications; foreign nationals seeking to enter on an immigrant visa as a healthcare professional, as well as their spouse and unmarried children under age 21; applicants for EB-5 immigrant visas; and those whose entry would be in the national interest. 

Additionally, in accordance with a recent federal court order and preliminary injunction, the proclamation does not apply to organizations (and their foreign national employees) who are members of the National Association of Manufacturers, the US Chamber of Commerce, the National Retail Federation, Technet, and Intrax, Inc. The preliminary injunction is currently under appeal by the federal government.

With the continued suspension of routine visa services at consular posts worldwide and the extension of the proclamation, employers should anticipate continued delays in the return or relocation of employees to the United States.

Note that the proclamation discussed above is distinct from the coronavirus (COVID-19) related country or region-specific travel bans, which restrict entry of individuals who have been in the following countries during the preceding 14 days prior to traveling to the United States: China, Iran, European Schengen Area, United Kingdom, Ireland, and Brazil. The country-specific travel ban remains effective unless rescinded or superseded by the issuance of a subsequent proclamation. Individuals subject to the country-specific travel ban may apply for national interest exception waivers to enter the United States.

In a recent related development, airlines in the United States have appealed to the administration to implement testing requirements for entry to the United States, rather than bans from specific countries. Implementing testing requirements prior to travel may be a likely path taken by the new administration in the near future.

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