On June 23, 2020, President Trump signed the Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, a move that further limits legal immigration through December 31, 2020. The Proclamation intends to do two things:

• First, it seeks to extend and continue through the end of 2020 the terms of an earlier Presidential Proclamation that limited immigrant (permanent) entry into the United States. This section of the Proclamation goes into effect immediately.
• Second, it seeks to suspend and limit the entry into the United States of individuals pursuant to various nonimmigrant (temporary) visas. This section of the Proclamation goes into effect on June 24, 2020, at 12:01 AM ET.

WHAT IS THE REASON GIVEN FOR ISSUANCE OF THIS NEW PRESIDENTIAL PROCLAMATION?

The rationale given by President Trump for his issuance of the new Proclamation is that loss of jobs by U.S. workers caused by the COVID pandemic makes the new restrictions necessary to protect U.S. workers from the “unusual threat” posed by “certain nonimmigrant visa programs authorizing such employment.”

President Trump’s intent, however, in issuing the new, as well as the initial Proclamation, is to restrict both permanent and temporary immigration – something the President has promised to do since taking office. Now, just a few months away from another Presidential election and amid a public health crisis, he has new justification and reasons to take action to further close the U.S. borders through executive, rather than legislative, action.

WHAT IS THE IMPACT OF THE APRIL 22, 2020 PROCLAMATION THAT THE NEW PROCLAMATION EXTENDS?

The initial Proclamation on April 22, 2020, was intended to restrict permanent immigration, but it actually affected only a limited group of potential immigrants, specifically foreign individuals who were outside the United States on April 23, 2020 (the effective date of the restrictions) and who had not been issued a valid immigrant visa or similar U.S. travel document by a U.S. Consulate.

The result of the April 22 Proclamation is that it does not apply to persons already holding a valid U.S. immigrant visa or similar travel document; it does not affect persons who are seeking to come to the United States temporarily, and it does not affect those applying for permanent residence in the United States through the filing of an application for adjustment of status to permanent residence in the United States.

The new Proclamation extends this limitation on U.S permanent immigration to the end of 2020 such that issuance of immigrant visas at U.S. consulates is halted through the end of 2020, but processing for permanent residence for those already in the United States is not entirely blocked.

WHAT DOES THE NEW PROCLAMATION DO AND WHAT IMPACT WILL IT HAVE?

The new Proclamation seeks to bar entry into the United States of individuals who are using a visa in one of the following temporary visas categories:

• H-1B specialty workers and any foreign national accompanying them or following to join them;
• L-1 intracompany transferees and any foreign national accompanying them or following to join them;
• H-2B temporary workers and any foreign national accompanying them or following to join them; and
• J-1 cultural exchange visitors participating in an intern, trainee, teacher, camp counselor, au pair, or summer travel program and any foreign national accompanying them or following to join them.

The Proclamation is written to sound like entry of foreign workers using certain key work visas will be barred through the end of 2020, but this is not the case because the exemptions to the bar take much of the bite out of the scope of the entry bar. Specifically, the new Proclamation limits the entry bar only to persons who:

• Are outside the United States on the effective date of the Proclamation;
• Do not have a nonimmigrant visa that is valid on the date of the Proclamation; and
• Do not have an official travel document other than a visa (e.g., advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

Thus, the Proclamation does not bar entry into the United States of persons who already hold a valid visa for entry as H-1B, H-4, L-1, L-2, H-2B, J-1, or J-2.

The language chosen in this section of the Proclamation is curious because, if given a strict reading, it would suggest that existing visa holders would not be precluded from traveling abroad, renewing their visas, and reentering the United States during the validity period of the suspension – something the White House confirmed on a guidance call following the Proclamation. The language is also reflective of that used in other proclamations that allow for the temporary entry of Canadian nationals because Canadians in most nonimmigrant categories are visa exempt.

The Proclamation will not apply to the following individuals:

• Lawful permanent residents of the United States;
• Spouses and children of U.S. citizens;
• Anyone seeking entry to provide temporary labor essential to the U.S. food supply chain; and
• Anyone whose entry would be in the national interest. This would include individuals considered to be critical to the defense, law enforcement, diplomacy, or national security of the United States; those involved with the provision of medical care to individuals who have contracted COVID-19 and are current hospitalized; those involved in medical research at U.S. facilities to help combat COVID-19; those necessary to facilitate the immediate and continued economic recovery of the United States; and children who as a result of suspension would age out of eligibility for a visa.

While the actual impact of the new Proclamation is not as far-reaching as expected in practice, the bigger threat to legal immigration is the high likelihood that restrictive regulations soon will be proposed and adopted to further restrict legal immigration and whittle down the ability of U.S. employers to employ foreign workers in the United States. The immigration team at Nilan Johnson Lewis continues to monitor these developments and provide updates as they occur.