Fox Rothschild LLP

Yesterday, June 22, 2020, President Trump issued the anticipated Proclamation suspending the entry into the US of certain nonimmigrant visa holders.  Specifically, the following new restrictions are in effect 6/24/2020:

  • The executive order applies to foreign nationals who seek to enter the United States in H1B, H-4, H2B, L-1, or L-2 status (as well as all accompanying or following to join family members).
  • The order also applies to those requesting admission in J status “…who are participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien.”
  • The executive order does NOT apply to anyone who is in the United States as of the effective date of the order (12:01 a.m. eastern daylight time on June 24, 2020)
  • The order does NOT apply to anyone who has a valid nonimmigrant visa as of the effective date.
  • The order does NOT apply to anyone who has “…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 this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.”
  • The order does NOT apply to any alien whose entry would be in “the national interest”, lawful permanent residents of the US, those providing temporary labor or services essential to the US food supply chain, law enforcement, diplomacy, provision of medical care to individuals with COVID-19 who are hospitalized, and research at US facilities to help combat COVID-19.
  • Notably, there is a section calling for the removal of any foreign national who circumvents the proclamation through fraud, willful misrepresentation, or illegal entry.
  • This executive order is scheduled to remain in place through December 31, 2020, and may be extended beyond that date.

This means if you are an employer with an employee abroad who was expecting to obtain an L-1 or H-1B visa in the coming months (including those individuals who are waiting for approval of their H-1B visas under the cap/lottery) you should expect that the employee will not be able to return to the U.S. until January 2021 at the earliest, even if in possession of an approved visa petition.

Beyond the language of the EO itself, individuals who are exempt and plan to enter the U.S. soon, should be prepared to be challenged at the port of entry.  Individual immigration officers at the port of entry may or may not fully understand the details of the order, or the exceptions, and it would not be surprising that if a few try to apply it too broadly or too aggressively.

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