Nicola Tegoni, Partner

June 26, 2020

On June 20, 2020, President Trump pursuant to Immigration and Nationality Act (“INA”) sections 212(f) and 215(a) and 3 U.S.C. section 301 issued a Proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

This Proclamation extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

  • H-1B Visa and any foreign national accompanying or following to join them;
  • H-2B Visa and any foreign national accompanying or following to join them;
  • J Visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above who:

  • Is outside the United States on the effective date of the Proclamation;
  • Does not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and
  • Does not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

Exemptions:

  • The Proclamation will not apply to the following individuals:
  • Lawful Permanent Residents;
  • Spouse or Child of U.S. Citizen;
  • Any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  • Any individual whose entry would be in the national interest as determined by the U.S. Secretary of State, the U.S. Secretary of Homeland Security, or their respective designees;

For the purpose of determining who is covered under the “national interest” exemption, the Proclamation directs the U.S. Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  • Are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • Are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • Are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  • Are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • Are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum seekers are not included in the ban.  The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture.

Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation, or illegal entry will be prioritized for removal.

Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the U.S. Secretary of Homeland Security, in consultation with the U.S. Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

The U.S. Secretary of Health and Human Services will provide guidance to the U.S. Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country.

Additional Measures:

  • Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B non-immigrant visa do not limit opportunity for U.S. workers;
  • Undertake investigations of Labor Condition Applications (LCA) violations pursuant to INA section 212(n)(G)(i);
  • Consider issuing regulations or other actions concerning the allocation of visas and ensuring that the presence of H-1B workers in the United States does not negatively affect U.S. workers;
  • Ensure that an individual will not be able to apply for a visa or admission to the United States until they have completed biometrics, including photographs, signatures, and fingerprints; and
  • Take steps, consistent with law, to prevent certain individuals who have final orders of removal; who are inadmissible or deportable from the U.S.; have been arrested for, charged with or convicted of a criminal offense, from being able to work in the United States.

Note:

U.S. Citizens, Lawful Permanent Residents, and individuals who are or were inside the United States or those holding valid nonimmigrant visas on the effective date of the Proclamation are not subject to the Proclamation. Furthermore, no valid visas will be revoked under the Proclamation and those individuals with valid visas issued prior to the effective date of the Proclamation will be allowed entry in the United States after the suspension goes into effect regardless of whether they have come in before or not on that visa.

Canadians entering as H, L, or J non-immigrants are exempt from the Presidential Proclamation.

The Proclamation took effect on June 24, 2020, at 12:01am (ET), and will remain in effect at least until December 31, 2020.

 

*Required Disclaimer: This alert is provided for informational purposes and does not constitute, and should not be considered legal advice. Specific facts and circumstances will differ. Neither the transmission nor the receipt of this information shall create an attorney-client relationship between the transmitter and the recipient. You should not take, or refrain from taking, any action based upon information contained in this alert without consulting legal counsel of your own choosing. Under applicable professional rules of conduct, this informational publication may be considered attorney advertising.