Highlights

There have been many changes to immigration processes and procedures in the United States as a result of the coronavirus pandemic, and, as expected, more extreme measures are being taken by the president and more are likely to come. Holland & Knight's fifth installment of employer alerts focusing on immigration under COVID-19 summarizes the latest executive order signed by President Donald Trump on June 22, 2020, that suspends additional immigration activities.

What Is the Official Name of the Executive Order?

The executive order is known as the Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.

When Does the Executive Order Take Effect?

The effective date is 12:01 a.m. EDT on June 24, 2020.

When Does the Executive Order Expire?

The executive order expires Dec. 31, 2020, and may be continued or modified at the president's discretion.

What Is the Purpose of the Executive Order?

The purpose of the executive order is to suspend the entry into the United States of foreign nationals on any of the following employment-based nonimmigrant visa:

• H-1B visa and any foreign national accompanying or following to join an H-1B visa holder
• H-2B visa and any foreign national accompanying or following to join an H-2B visa holder
• J visa, 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 such a J-1 visa holder
• L visa, and any foreign national accompanying or following to join an L-1 visa holder

The executive order also extends, effective June 22, 2020, the Presidential Proclamation 10014 issued on April 22, 2020, which suspended the entry into the U.S. of certain immigrants. (See Holland & Knight's previous alert, "Immigration Under COVID-19: U.S. Halts Entry of Certain Foreign Nationals to Protect Labor Market," April 23, 2020.)

To Whom Does the Executive Order Apply?

The executive order applies to the individuals referenced above if they:

• are outside the U.S. on the effective date
• do not have a nonimmigrant visa that is valid on the effective date, and
• do not have a valid travel document other than a visa (such as a transportation letter, a boarding foil or an advanced parole document) that is valid on the effective date or issued any date after the effective date that permits admission to the U.S.

Who Is Exempt from the Executive Order?

The executive order does not apply to the following foreign nationals:

• lawful permanent residents (i.e., those with a valid green card)
• spouse or child of a U.S. citizen
• any individual seeking entry into the U.S. to provide temporary labor essential to the U.S. food supply chain
• any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees

For purposes of determining who is included in the "national interest" exemption, the executive order directs the Secretaries of State, Labor and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

• are critical to the defense, law enforcement, diplomacy or national security of the U.S.
• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized
• are involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19
• are necessary to facilitate the immediate and continued economic recovery of the U.S.
• are children who would age out of eligibility for a visa because of the executive order or Proclamation 10014

Who Determines if Someone Falls into one of the Exempted Categories Listed Above?

Consular Officers have discretion to determine if any individual falls within one of the above exempted categories.

Who Else is Excluded from the Proclamation?

Asylum seekers are not included in the ban, as the proclamation specifically states that it does not limit the ability of an individual to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

What COVID-19 Measures Are Included?

The proclamation requires that the Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security regarding measures to reduce the risk of those seeking admission to the U.S. introducing or spreading COVID-19 within the country. It is understood that this will require entrants to the U.S. to be subject to a COVID-19 test before arriving in the U.S.

What Other Measures Are Contemplated by the New Executive Order?

The following are additional measures contemplated under the proclamation:

• issuing regulations or taking additional actions to ensure that those who have already been admitted into the U.S. or are seeking admission on an EB-2 immigrant visa, EB-3 immigrant visa, or an H-1B nonimmigrant visa do not limit opportunities for U.S. workers
• undertaking investigations of violations of Labor Condition Applications (LCAs)
• considering issuing regulations or other actions regarding the allocation of visas and ensuring that the presence of H-1B workers in the U.S. does not negatively affect U.S. workers, which is understood to mean inclusion of prioritizing the highest paid H-1B workers in the numerical cap
• ensuring that a foreign national will not be able to apply for a visa or admission to the U.S. until they have completed biometrics, including photographs, signatures and fingerprints; and
• taking steps, consistent with the law, to prevent certain individuals who have final orders of removal, who are inadmissible or deportable from the U.S., have been arrested for, charged with or convicted of a criminal offense, from being able to work in the U.S.

What if Someone Is Determined to be Eligible for Entry Under an Exempted Category?

If someone is determined to be a foreign national falling within one of the exempted categories, they will be authorized to enter the U.S. accordingly. However, if the person is later deemed to have been approved as eligible under such exempted category through fraud, willful misrepresentation of a material fact or illegal entry, their removal from the United States by the Department of Homeland Security will be prioritized.