On June 22, 2020, the Trump Administration issued yet another Presidential Proclamation that further restricts immigration and stands to severely impact the U.S. business community and its ability to hire foreign talent. The latest Proclamation targets some of the most commonly used employment-based visa categories. The current administration has issued its latest series of restrictions with the primary justification of implementing protectionist policies in order to mitigate the negative economic and employment consequences of the COVID-19 pandemic.
Below we outline and analyze the nature, scope, and practical impacts of the Proclamation, based on the limited information currently available at the time of this writing. It is critical to note that the Proclamation directs the heads of certain government agencies to elaborate rules and guidelines to give concrete form to the policy objectives announced by the White House. These rules and guidelines will define the exceptions and the procedures by which individuals may still qualify for a visa despite the sweeping ban (e.g., what types of applicants would be deemed to qualify as an “entry [that] would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”). Therefore, until such guidance is released by the government, it is not possible to advise or predict with any precision whether a specific person might qualify for a visa and be able to enter the U.S.
We are closely monitoring the situation and will general provide relevant updates as they become available. You should contact our immigration team for specific analysis in connection with individual circumstances as legal counsel will be extremely case- and fact-specific.
Nature & Scope of the Proclamation:
- Extension of Prior April 22, 2020 Presidential Proclamation: The Trump Administration had previously suspended the entry of persons under a majority of immigrant visa categories for a period of 60 days, with limited exceptions. Pursuant to this new June 2020 Proclamation, this prior suspension is extended through December 31, 2020. This means that for the majority of persons who are in the process of applying for an immigrant visa to come to the U.S. (i.e., those who do not already possess a valid immigrant visa), their applications will be frozen until the ban either lapses or is rescinded.
- New Suspension on Entry into the U.S. under Certain Nonimmigrant Visa Classifications: The Proclamation suspends the entry into the U.S. of persons under the following nonimmigrant (temporary) visa categories:
- H-1B and any dependent family members;
- H-2B and any dependent family members;
- L-1 and any dependent family members;
- The following sub-categories under the J visa classification, as well as any dependent family members:
- Interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants
Application of & Exemptions to the Proclamation:
- Application: Upon the effective date, the restrictions of the Proclamation will apply to individuals currently outside of the U.S. who do not have a currently valid nonimmigrant visa or other currently valid travel document.
- Importantly, at this time the Proclamation does NOT impact anyone who is currently in the U.S. pursuant to a valid visa status. These persons are also still permitted to file petitions to extend or change their status, but should not travel internationally under any circumstances. This includes individuals in the U.S. who are awaiting a change of status to H-1B under the FY2021 cap.
- Persons outside of the U.S. who already possess a valid visa are similarly not prohibited from seeking entry into the U.S.
- It is not yet known if the Proclamation will also apply to Automatic Visa Revalidation procedures for those who regularly cross the U.S.-Mexico/Canada land borders.
2. Exceptions: The Proclamation expressly exempts the following classes of persons from being subject to the restrictions:
- Lawful permanent residents of the U.S. (“green card” holders);
- Spouses and children of U.S. citizens:
- Foreign nationals seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- Foreign nationals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
As disclaimed above, it is not yet known how the various government agencies will define and implement these exceptions until guidance and rules are released.
Additionally, the Proclamation does not touch upon ESTA/Visa Waiver Program visitors and other nonimmigrant visa categories, including O-1, E-2 Treaty Investors, and B-1/B-2 visitors.
Effective Dates:
The new restrictions become effective at 12:01 a.m. eastern daylight time on June 24, 2020. They are set to expire on December 30, 2020.
Additional Measures:
As part of the Trump Administration’s effort to give priority to U.S. workers, the Proclamation directs the Departments of Homeland Security and Labor to develop regulations to ensure that H-1B nonimmigrants and EB-2 and EB-3 immigrants do not disadvantage U.S. workers. These rules could alter the way the government currently allocates visa numbers, the wage levels and prevailing wage requirements connected to H-1B and PERM programs, or the way in which the government exercises its enforcement authority. While the details will be forthcoming, it is clear that the overall environment is not friendly to immigration—be it temporary or permanent in nature.
Lastly, we remind that the foregoing is separate from, and in addition to, any of the other COVID-19 travel restrictions currently in effect.
