President Trump signs Presidential Proclamation suspending the entry of certain nonimmigrants

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Introduction

As previously reported, President Trump signed the Proclamation Suspending Entry of Immigrants Who Present Risk to the US Labor Market During the Economic Recovery Following the COVID-19 Outbreak (Immigrant Proclamation) on April 22, 2020. The Immigrant Proclamation suspended the entry of immigrants (i.e., permanent resident applicants) to the United States, in response to the 2019 Novel Coronavirus (COVID-19) outbreak. While it did not affect nonimmigrants (i.e., workers, students, etc.), it stated that nonimmigrant programs would also be reviewed and that additional restrictions could be implemented in the next 30 days to stimulate the United States economy and to ensure the prioritization, hiring and employment of United States workers. 

President Trump was expected to sign another Presidential Proclamation last week, which would suspend the entry of certain nonimmigrants, in response to the COVID-19 outbreak. Although there appears to have been a slight delay, President Trump signed the Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak(Nonimmigrant Proclamation) on April 22, 2020. 

The Nonimmigrant Proclamation suspends the entry of aliens seeking admission under certain nonimmigrant visa categories, commencing on June 24, 2020 (at 12:01 am EDT) and ending on December 31, 2020. It also extends the Immigrant Proclamation until December 31, 2020. Further details regarding the Nonimmigrant Proclamation appear below. 

Suspension of certain nonimmigrant entries

According to Section 2 of the Nonimmigrant Proclamation, the entry of any alien seeking admission pursuant to any of the following nonimmigrant visas is suspended (subject to Section 3):

As previously reported, it was expected that the Nonimmigrant Proclamation would only apply to L-1B specialized knowledge workers and not to L-1A executives and managers. As most multinational corporations use the L-1A category to transfer their executives and managers to the United States, it seemed unlikely that they would be included. Unfortunately, the Nonimmigrant Proclamation makes no distinction between L-1A and L-1B nonimmigrants. 

Scope of suspension

According to Section 3, Section 2 will only apply to an alien who:

  • Is outside the United States on the effective date of the Nonimmigrant Proclamation;
  • Does not have a nonimmigrant visa that is valid on the effective date of the Nonimmigrant Proclamation; and
  • Does 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 the Presidential Proclamation or issued any day thereafter, which permits him or her to travel to the United States and seek entry.

This suggests the following:

  • Aliens who are already in the United States under one of the above categories should be permitted to remain until their status has expired. They should also be permitted to extend their status within the United States. 
  • Aliens who are outside the United States but who already hold a valid visa under one of the listed categories should be permitted to enter the United States using that visa.
  • Aliens who are already in the United States and who have pending applications for adjustment of status should be permitted to travel abroad and then return to the United States under advance parole, regardless of whether their advance parole document was issued prior to or after the effective date of the Nonimmigrant Proclamation. 

Section 3 also states that the suspension on entry will not apply to the following:

  • Any lawful permanent resident of the United States (this appears to be an error since lawful permanent residents would have no reason to seek admission pursuant to a nonimmigrant visa);
  • Any alien who is the spouse or child of a United States citizen (but not the spouse or child of a lawful permanent resident);
  • Any alien seeking to enter the United States in order to provide temporary labor or services essential to the United States 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. 

The Secretary of State, Secretary of Labor, and Secretary of Homeland Security will establish standards to define categories of aliens who are entitled to a national interest exemption, including any aliens who:

  • Are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • 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 US facilities to help the United States combat COVID-19;
  • Are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • Are children who would age out of their eligibility for a visa because of the Nonimmigrant Proclamation or Immigrant Proclamation.

Consular officers will have the discretion to determine whether an alien falls under one of the exemptions described above.

Application to Canadian citizens

Section 2 of the Nonimmigrant Proclamation only appears to suspend the entry of an alien who is seeking admission pursuant to one of the listed nonimmigrant visas. Since Canadian citizens are visa-exempt when entering under any of the listed categories (they are the only nationality permitted to enter under these categories without a visa), they would not actually seek admission pursuant to a “nonimmigrant visa.” 

In addition, Section 3 appears to at least contemplate the possibility that a Canadian Passport falls within the meaning of “official travel document other than a visa.” This is because a Canadian Passport alone would permit a visa-exempt Canadian to travel to the United States and seek entry or admission.

This at least suggests that Canadian citizens who enter the United States under H-1B, H-2B, J-1, or L-1 status (and their Canadian citizen dependents) would not be subject to the Nonimmigrant Proclamation.  However, it is too early to know with certainty whether Nonimmigrant Proclamation will be applied in a manner that exempts Canadian citizens.  Hopefully, this issue will be clarified in the near future. 

No application to asylees, refugees, etc.

The Nonimmigrant Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Priority removal for fraud, willful misrepresentation, or illegal entry

The Nonimmigrant Proclamation states that an alien who circumvents its application through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

Extension of the Immigrant Proclamation

As mentioned above, the Nonimmigrant Proclamation also extends the Immigrant Proclamation until December 30, 2020.  The Immigrant Proclamation was initially set to expire after 60 days (until June 22, 2020), unless extended. 

Additional measures

The Nonimmigrant Proclamation also contains the following additional measures:

  • It requires the Secretary of Health and Human Services, through the Director of the Centers for Disease Control and Prevention, to provide guidance for implementing measures that could reduce the risk that aliens seeking entry to the United States may spread COVID-19 within the United States. This could include a mandatory COVID-19 test before arrival. 
  • It requires the Secretary of Labor to consider promulgating regulations or taking other appropriate action to ensure that the presence of aliens who have been, or 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 US workers. It is not known what additional action could be imposed in the case of EB-2 and EB-3 immigrants, since they are already subject to a labor certification requirement in most cases.  However, it is possible that a labor market test will also be imposed on H-1B nonimmigrants.
  • It requires the Secretary of Homeland Security, in coordination with the Secretary of State, to prevent an alien from applying for a visa, entering the United States, or obtaining some other benefit until he or she has been registered with biographical and biometric information (including photographs, signatures, and fingerprints). 
  • It requires the Secretary of Homeland Security to take steps to prevent certain aliens who have final orders of removal; who are inadmissible/deportable from the United States; or who have been arrested, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States. 
  • It requires the Secretary of Homeland Security to consider promulgating regulations or taking other appropriate action regarding the efficient allocation of visas to ensure that the presence of H-1B nonimmigrants in the United States does not disadvantage United States workers. 

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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