Update: Entry Restrictions Imposed on Some Nonimmigrants

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Last night, President Trump signed a Presidential Proclamation imposing entry restrictions on certain foreign nationals in temporary work visa statuses, including H-1B, L-1, J-1 and H-2B, and related categories for dependents, with some exceptions. The restrictions will take effect on June 24, 2020, at 12:01am EDT and will expire on December 31, 2020, subject to possible extensions. Additionally, the Proclamation extends the current restrictions on certain immigrant visa applicants until December 31, 2020. The Proclamation will only impact foreign nationals in those affected categories who are outside the United States and who do not yet have a valid visa, advance parole or other U.S. travel document. The Proclamation does not impact foreign nationals already in the United States regardless of their visa category.

Who Is Affected?

The Proclamation restricts the entry into the United States of foreign nationals in the following temporary work visa (i.e., nonimmigrant) categories, if the foreign national is outside the United States as of 12:01am EDT on June 24 and does not currently hold a valid visa, advance parole or other U.S. travel document:

  • H-1B professional workers;
  • H-2B temporary non-agricultural workers;
  • L-1 intracompany transferees, including both executives and managers and “specialized knowledge” employees;
  • J-1 interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants; and
  • The dependent spouses and children of all of the categories listed above, including H-4, L-2, and J-2.

Who Is Not Affected?

Importantly, the Proclamation does not impact foreign nationals in any of the affected visa categories who are physically present in the United States as of 12:01am EDT on June 24, 2020. It also does not impact foreign nationals who are physically present in the United States in other visa categories. Finally, it does not impact foreign nationals in any of the affected visa categories who already hold a valid visa, advance parole or other U.S. travel document on June 24, even if they are outside the United States when the Proclamation takes effect.

The following categories of foreign nationals are also exempt from the restrictions: lawful permanent residents (i.e., “green card” holders); spouses and children of U.S. citizens; J-1 program participants other than those listed above; and foreign nationals entering to provide temporary labor or services essential to the U.S. food supply chain.

The Proclamation also provides for discretionary waivers for foreign nationals otherwise affected by the restrictions but whose entry would be in the U.S. national interest. The specific procedures for requesting such waivers have yet to be announced. Given how the Administration has processed waivers to immigration restrictions in the past, however, we expect that waivers will be rare and difficult to obtain.

Impact and Guidance

The restrictions imposed by this Proclamation will undoubtedly restrict employers’ ability to bring new foreign national employees to the United States in any of the affected categories until at least the end of 2020. If you have any employees in those affected categories who are currently abroad, please reach out to us.

Given all immigration related restrictions and COVID-19 related travel restrictions, we strongly caution against international travel at this time. Travel abroad at this time could result in affected employees’ inability to return to the United States for an uncertain period of time. We will continue to monitor the situation and provide updates as appropriate.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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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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