As discussed in our previous post, the White House recently issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas. The original Proclamation provided the suspension and limitation on entry would apply to foreign nationals attempting to enter the United States on (1) an H-1B or H-2B visa; (2) a J-1 visa if participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program; and (3) and L-1 visa (both managerial/executive and specialized knowledge). On June 29, 2020, the administration issued a second Presidential Proclamation tightening the original restrictions.
The original Proclamation states suspensions and limitations would only apply to an alien seeking entry in the affected categories who:
1. Is outside the United States on the date of the proclamation;
2. Did not have a nonimmigrant visa that is valid on the effective date of the proclamation; and
3. Did not have an official travel document other than a visa that is valid on the effective date or was issued on any date thereafter that permits the individual to seek entry or admission.
The amendment clarifies that the valid nonimmigrant visa held by the foreign national on the effective date of the proclamation must be the H-1B, H-2B, J-1, or L-1 visa on which they are seeking entry. By doing so, the administration foreclosed the possibility that a foreign national could be exempt from the order by holding a different visa (such as a B-1/B-2 tourist visa) on the effective date of the order—a possibility raised in our prior article based on the language of the original Proclamation.
While the amendment provides some clarity, it also fails to address many open questions. For example, it is still unclear whether presence in the United States on the Proclamation effective date, in and of itself, exempts foreign nationals from the scope of the order. The vague language could potentially restrict the ability of those with recent H-1B and L-1 extensions to reenter the United States if they travel in the coming months.
For now, foreign nationals in the affected visa categories should restrict travel to the greatest extent possible. The Department of Homeland Security and the Department of State are expected to issue further interpretation of the entry restrictions, which should provide further guidance.