Summary of Executive Actions Impacting Business Immigration

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Since April 2020, several executive actions have been issued, and subsequently amended, that have had a significant impact on business immigration.

This alert serves to inform clients of the updates to the ongoing U.S. visa system and travel restrictions in response to the global coronavirus pandemic. Since implementation of the restrictions, the Trump administration has issued additional guidance on certain exceptions for eligible persons to obtain a visa or enter the United States.

Proclamation 10014 became effective April 23, 2020, at 11:59 pm (ET) and was recently extended to December 31, 2020, by President Trump. This proclamation applies to any individual:

  • Seeking to enter the United States as an immigrant who was outside of the United States on April 23, 2020,
  • Who did not have a valid immigrant visa as of April 23, and
  • Who was not already in possession of a valid travel document effective on or after April 23, 2020

The following categories are exempted from Proclamation 10014:

  • Lawful permanent residents
  • Individuals and their spouses or children seeking to enter the United States to perform medical services or research to stop the spread of COVID-19
  • Individuals applying for the EB-5 immigrant investor program
  • Spouses of U.S. citizens
  • Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa
  • Individuals who would further the enforcement initiatives of U.S. law enforcement
  • Members of the U.S. armed forces and their spouses and children
  • Individuals and their spouses or children eligible for Special Immigrant Visas such as an Afghan or Iraqi translator/interpreter or U.S. government employee
  • Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS)
  • Children who would age out of eligibility for a visa because of this proclamation

Pursuant to the authority of the executive branch under the Immigration and Nationality Act, this proclamation can be extended if the President, in consultation with the Secretaries of State and the Department of Homeland Security (DHS), determine it is necessary.

Proclamation 10052 became effective two months later at 12:01am (ET) on June 24, 2020, remaining in effect through December 31, 2020. This proclamation extended the immigrant visa entry restrictions listed in Proclamation 10014 but did not alter its exceptions. This proclamation focuses on restricting individuals in the following nonimmigrant visa categories of entry to the United States:

  • H-1B, H-2B or H-4 dependents
  • J-1 interns, trainees, teachers, camp counselors, au pairs or summer work-travelers and their J-2 dependents
  • L-1A/L-1B or L-2 dependents

Individuals in the above visa categories are subject to restricted entry into the United States if the individual:

  • Was outside the United States as of June 24, 2020,
  • Did not have a nonimmigrant visa in one of the categories specified above that was valid as of June 24, and
  • Did not have an official travel document other than a visa (like an advance parole document) that was valid as of June 24 or issued on any date that permits travel to the United States

As with Proclamation 10014, Proclamation 10052 indicated that the following individuals are exempt:

  • Lawful permanent residents
  • Spouses or children of U.S. citizens
  • Individuals seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain
  • Individuals whose entry would be in the national interest as determined by the Secretaries of State or DHS

And, as with Proclamation 10014, this proclamation can be extended if the President deems it necessary.

Updates to Executive Orders Restricting Employment-Based Immigration and Travel to the United States

On June 29, 2020, Proclamation 10052 was amended by President Trump to clarify language surrounding individuals outside of the United States seeking entry under H-1B, H-2B, J-1 or L-1 visa categories or their dependents. Furthermore, the Department of State introduced and clarified specific exemptions to Proclamation 10014 and 10052:

Exemptions to the restrictions on United States entry under Proclamation 10052 are as follows:

  • H-1B
    • Public health professionals, health care professionals or researchers seeking to alleviate the effects of the COVID-19 pandemic or to conduct ongoing medical research in an area with a substantial public health benefit.
    • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • H-2B Nonimmigrant Visa
    • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations.
  • L-1 Nonimmigrant Visa
    • Travel as a public health professional, health care professional or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
  • J-1 Interns, Trainees, Teachers, Camp Counselors, Au Pairs and Summer Work Travel Exchange Visitors
    • Travel to provide care for a minor U.S. citizen, lawful permanent resident, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with special needs. Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be in the national interest.
    • Travel by an au pair that prevents a U.S. citizen, lawful permanent resident or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
    • Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
    • Exchange programs conducted pursuant to a Memorandum of Understanding, Statement of Intent or other valid agreement or arrangement between a foreign government and any federal, state or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the presidential proclamations.
    • Interns and trainees on U.S. government agency-sponsored programs (those with a program number beginning with "G-3" on Form DS-2019) — exchange visitors participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency, and the program supports the immediate and continued economic recovery of the United States.
    • Specialized teachers in accredited educational institutions with a program number beginning with "G-5" on Form DS-2019 — exchange visitors participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately-operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his or her assigned subject(s) in that language.
    • Exchange visitors involved in critical foreign policy objectives, only including exchange programs that fulfill critical and time sensitive foreign policy objectives.

The Department of State will also continue to issue H-4, L-2 and J-2 dependent visas to otherwise qualified derivative applicants who qualify for a national interest exemption, such as those seeking to join a principal applicant currently in the United States.

Suspension of Foreign Nationals Seeking Entry into the United States

President Trump issued travel restrictions for certain foreign nationals seeking to enter the United States who are traveling from certain countries, regardless of visa status. These restrictions are still in place as of this publication date and will remain in place until they are explicitly terminated by the President.

Foreign nationals who have been in the following countries within the 14 days prior to the date of their U.S. entry will not be admitted:

Austria

Belgium

Brazil

China

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Iceland

Iran

Ireland

Italy

Latvia

Liechtenstein

Lithuania

Luxembourg

Malta

Netherlands

Norway

Poland

Portugal

Slovakia

Slovenia

Spain

Sweden

Switzerland

United Kingdom

This 14-day travel restriction does not apply to the following categories:

  • U.S. citizens
  • Lawful permanent residents
  • Spouses of U.S. citizens or lawful permanent residents
  • Parents or legal guardians of unmarried U.S. citizens or lawful permanent residents under the age of 21
  • Siblings of U.S. citizens or lawful permanent residents if both are unmarried and under the age of 21
  • Children, foster children or wards of U.S. citizens or lawful permanent residents

The following exceptions apply to travelers from the Schengen Area, United Kingdom and Ireland:

  • Students travelling with valid F-1 and M-1 visas
  • Students with J-1 visas (should contact the nearest embassy or consulate to initiate an exception request)
  • Business travelers, investors, academics and treaty traders who have a valid visa or Electronic System for Travel Authorization (ETSA) authorization (should contact the nearest embassy or consulate before traveling)

The Department of State continues to grant National Interest Exceptions for travelers seeking to enter the United States for purposes related to humanitarian travel, public health response and national security.

Canada-U.S. Border Restrictions

Recently, Customs and Border Protection (CBP) published an updated notice of the previously announced March 21, 2020, agreements among the United States, Canada and Mexico to keep their borders closed to nonessential land and ferry crossings. The latest notice extends the prevention measures through August 20, 2020. Note that CBP continues to process TN and L-1 applications at the border in furtherance of international commerce and trade.

Phased Resumption of State Department Services

The U.S. Department of State also announced the phased resumption of routine visa services at U.S. consulates around the world. However, travel restrictions for foreign nationals from certain countries are still in place with the abovementioned exceptions.

The resumption of routine visa services to safely return the State Department’s workforce to its facilities will occur on a post-by-post basis. To that point, the State Department is unable to provide a specific date for when each mission will resume specific visa services. Applicants with urgent matters should navigate to their respective consulate’s website to request an appointment. Missions will continue to provide all possible services to U.S. citizens.

Summer associate David Adeleye contributed to this client alert.

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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