On June 22, 2020, President Trump issued a proclamation continuing Proclamation 10014 of April 22, 2020 entitled "Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak" (hereinafter referred to as "the Proclamation"). The Proclamation suspends the entry of new H-1B, H-2B, L-1, and certain J-1 nonimmigrants, as well as their accompanying spouses and dependents (i.e. H-4, L-2, and J-2 nonimmigrants), with some exceptions. The nonimmigrant suspension takes effect at 12:01am EDT on June 24, 2020. The Proclamation will remain in place through December 31, 2020, and may be extended as deemed necessary by the Administration.The Proclamation does not affect foreign nationals holding valid U.S. visas or other travel documents, or those already present in the United States as of the effective date of the ban. The Proclamation also does not include other nonimmigrant work visa categories such as TN NAFTA professionals, O-1 individuals of extraordinary ability, and E treaty traders/investors, though travel may still be restricted due to COVID-19.
In addition, the proclamation extends the existing ban on certain immigrant entries through December 31, 2020, effective immediately.
Who is Subject to and Affected by the Nonimmigrant Visa Ban?
The Proclamation suspends the entry of new nonimmigrants beginning at 12:01am EDT on June 24, 2020 through at least December 31, 2020, who are outside the United States on the effective date and do not hold a valid visa, advance parole or other U.S. travel document, in the following categories:
- H-1B and H-2B temporary workers
- L-1A executives or managers
- L-1B specialized knowledge professionals
- J-1 interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants
- Accompanying spouses and children of these banned nonimmigrant categories (i.e. H-4, L-1, and J-2 nonimmigrants)
The impact on Canadian nationals seeking admission in these categories - who are not required to obtain a visa to enter the United States - is not yet clear.
Who is Exempt from the Proclamation?
The following categories of foreign nationals are exempt from the ban on entry under the Proclamation:
- Lawful Permanent Residents
- Spouses of U.S. citizens
- Children of U.S. citizens
- Foreign nationals who are present in the United States in a valid nonimmigrant status at 12:01am EDT on June 24, 2020 when the ban takes effect (importantly: this includes those in the United States awaiting a change of status under the H-1B FY2021 CAP)
- Foreign nationals with a valid nonimmigrant visa, advance parole or other U.S. travel document, even if they are outside the United States when the ban takes effect
- J-1 exchange program participants who are not entering as Interns, Trainees, Teachers, Camp Counselors, Au Pairs or Summer Work Travel Participants
- Foreign nationals entering to provide temporary labor or services essential to the U.S. food supply chain
The Proclamation provides for discretionary waivers for foreign nationals whose entry would be in the U.S. national interest, including those who are necessary to facilitate the immediate and continued economic recovery of the United States, those involved with clinical care or research related to the diagnosis, treatment and prevention of COVID-19, and those who are critical to the defense, law enforcement, diplomacy or national security of the United States. Waiver procedures are expected to be developed by the Department of State in consultation with the Departments of Homeland Security and Labor. Please note that regardless of the procedures implemented by the Department of State, waivers are expected to be difficult to obtain.
Existing Visa Holders Not Impacted - Travel Still Restricted due to COVID-19
Although foreign nationals who are exempt from the ban may be permitted to reenter the United States under the Proclamation, all foreign nationals remain subject to ongoing COVID-19 travel restrictions. The previous Presidential Proclamations and additional actions are still in effect and could impede foreign nationals' ability to enter or reenter the United States, even if they are exempt from the Proclamation.
The existing COVID "travel bans" include individuals seeking entry into the U.S. after being physically present during the last 14 days in China, Iran, the United Kingdom, the Republic of Ireland, Brazil, and countries in the Schengen Area, with some exceptions. In addition, suspension of routine visa services at U.S. Embassies and Consulates have largely been suspended since March, with no official word on when the restrictions may be lifted.
Incumbent visa holders should consider the travel restrictions carefully and determine whether they must depart the United States (i.e. is it an emergent circumstance worth risking being refused re-entry).
Additional Restrictions Expected from the Administration
While the Proclamation makes no immediate changes to existing immigrant programs for those in the United States, the Proclamation orders the Departments of Homeland Security and Labor to develop regulations to ensure that existing temporary visa programs and immigrant/green card programs do not disadvantage U.S. workers.
Specifically, the Proclamation calls upon the relevant Executive agencies to review and make necessary regulations regarding H-1B nonimmigrants, EB-2 immigrants (employment-based 2nd preference), EB-3 immigrants (employment-based third preference, and even the Department of Labor's Permanent Labor Certification Program (PERM) and Labor Condition Application (LCA)n process.
We are closely monitoring the situation and will continue to report on all immigration restrictions and changes.
DISCLOSURE: This publication is intended to provide an overview of immigration issues in connection with the President's recent Proclamation, and is not intended to provide legal advice or an inclusive listing of all actions taken by the U.S. government in response to the COVID-19 pandemic.