New Proclamation Formalizes Temporary Ban on Entry for Nonimmigrants Seeking to Enter on H-1B, H-2B, L-1, and J-1 Visas

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On June 22, 2020, and citing economic recovery needs and unemployment due to the pandemic, President Trump issued “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” outlining expected new temporary restrictions on H-1B, H-2B, J-1, and L-1 nonimmigrant worker visas, which are among the most popular temporary U.S. worker visas. The proclamation takes effect immediately, will expire on December 31, 2020, and may be continued as necessary.

The proclamation comes on the heels of Proclamation 10014 of April 22, 2020 (“Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak”), which suspended the entry of aliens on immigrant visas, subject to certain exceptions, for a period of sixty (60) days. The June 22, 2020 proclamation continues and amends Proclamation 10014 to incorporate new restrictions on the entry of nonimmigrant temporary visa holders, including those with H-1B, H-2B, J-1, and L-1 visas, subject to certain exemptions. 

Expanded Restrictions to Cover Temporary Nonimmigrant Workers

The June 22 proclamation suspends and limits entry into the U.S. by foreign nationals seeking entry pursuant to the following nonimmigrant visas:

  • an H-1B or H-2B visa, and any alien accompanying or following to join such alien;
  • a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien; and
  • an L visa, and any alien accompanying or following to join such alien.

To Whom Does the Order Apply?

The suspension and limitation on individuals seeking entry as nonimmigrants, pursuant to section 2 of the proclamation, will apply only to foreign nationals who:

  • are outside the U.S. on the effective date of this proclamation (June 22, 2020);
  • do not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
  • do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits them to travel to the U.S. and seek entry or admission.

What Are the Exemptions and Who Is Covered?

The proclamation contains several exemptions, including for workers who provide temporary labor or services essential to the food supply chain, along with a broad “national interest” exemption seen in earlier proclamations. Specifically, the suspension will not apply to the following individuals:

  • any lawful permanent resident of the U.S.;
  • any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. § 1101(b)(1)), of a U.S. citizen;
  • any alien seeking to enter the U.S. to provide temporary labor or services essential to the food supply chain; and
  • any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

What Is the “National Interest” Exemption?

The proclamation adds clarifying detail to define categories of aliens covered by section 3(b)(iv) (the exemption for those entering for national interest purposes). Specifically, the national interest exemption is defined as covering those that are:

  • critical to the defense, law enforcement, diplomacy, or national security of the U.S.;
  • involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19; or
  • necessary to facilitate the immediate and continued economic recovery of the U.S.

Is Consular Processing Available?

The proclamation leaves open the possibility of consular processing of new H-1B, H-2B, J-1, and L-1 visas abroad for individuals able to establish they are covered by one of the exemptions. The proclamation explains that the “consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation.”

Based on the language focusing on the proclamation’s scope, a foreign national able to enter on an alternative valid travel document, or who is currently in the U.S., may be able to obtain a new visa stamp once the consulates open.

Possibility of Additional Recommendations

The proclamation directs the Secretary of Labor, in consultation with the Secretary of Homeland Security, to consider promulgating regulations or take other appropriate action to ensure that the presence in the U.S. of aliens – who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa – does not disadvantage U.S. workers.

The proclamation notes that “within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

How Does this Proclamation Affect Employment?

Employers should be aware that this proclamation does not halt all entry of individuals who hold nonimmigrant visas or close the U.S. borders to all prospective nonimmigrant workers. This entry restriction specifically applies to individuals who must apply for nonimmigrant visas outside the country and subsequently travel to the U.S. and who do not have an alternative travel document (such as Advance Parole) that permits them to travel to the U.S. and seek entry or admission.

We expect that the proclamation could impact new H-1B workers (who traditionally enter the U.S. to begin work on October 1, 2020), if they are currently outside the U.S. and do not hold a valid nonimmigrant visa or alternative travel document. For affected prospective workers, there are still several exemptions that may be applicable for continued nonimmigrant processing abroad, including for food supply, healthcare, and “national interest” workers.

The TN, E-1 E-2, E-3, and O-1 nonimmigrant worker visas remain unaffected, and these individuals may travel outside the U.S. subject to normal restrictions. Employees currently in the U.S. seeking to change their nonimmigrant status or apply for extensions within the U.S. will not generally be adversely affected. Employers should contact counsel for advice about individual circumstances (and to monitor the potential need to travel abroad).

In light of the circumstances, all current H-1B, H-2B, L-1, and J-1 nonimmigrant visa holders should avoid imminent travel and, if necessary, ensure the validity of their current nonimmigrant visas prior to leaving the U.S. in order to avoid being subjected to an entry ban.

Overview of Current Restrictions

Routine visa services at all U.S. embassies and consular posts have been suspended since March 20, 2020 and remain suspended until further notice (which will, regardless of the ban, prevent nonimmigrant processing abroad for the foreseeable future).

The U.S. land borders with Canada and Mexico remain closed for non-essential travel through at least July 21, 2020. Per prior presidential proclamations, the entry of most foreign nationals (regardless of nationality) who were physically present in China, Iran, Brazil, the European Schengen Area, the United Kingdom, and Ireland during the 14-day period before attempted entry into the U.S. also has been suspended.1 These suspensions will continue to be in effect until otherwise terminated.

U.S. embassies and consulates continue to provide urgent and emergency visa appointments as available and, in some cases, are processing new visa applications for those subject to current travel bans who are able to establish eligibility for a “national interest” exemption. Domestically, the U.S. Citizenship and Immigration Services (USCIS) has begun to reopen and resume non-emergency services at certain field offices and continues to process applications and petitions, including those requesting extensions and change of status.

We will continue to monitor this evolving issue for additional guidance. Employers should contact counsel for assistance in determining whether their employees may be affected by this proclamation or for more in-depth advice regarding available nonimmigrant processing and entry options for impacted workers abroad seeking entry via the referenced nonimmigrant visas.

 

Footnotes

See Proclamation 9984 of Jan. 31, 2020 (Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus); Proclamation 9992 of Feb. 29, 2020 (Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus); Proclamation 9993 of Mar. 11, 2020 (Proclamation - Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus); Proclamation 9996 of Mar. 14, 2020 (Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus); Proclamation 10041 of May 24, 2020 (Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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