New Proclamation bans entry of nonimmigrant workers, but scope may be narrow

On June 22, as we expected, President Trump issued “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” The Proclamation temporarily suspends the entry of certain nonimmigrant (temporary) foreign workers to the United States, specifically H-1B, H-2B, and certain J-1 and L-1, visa holders.

This follows the President’s April 22 Proclamation, which restricted entry of immigrants (permanent resident applicants).

Both the April 22 and June 22 Proclamations have the stated rationale of protecting jobs for American workers.

The June 22 Proclamation

Regarding its latest Proclamation, the White House published this fact sheet, which summarizes the key points:

• From June 24 through December 31, the United States has suspended entry of foreign nationals seeking new nonimmigrant visas in the H-1B, H-2B, L-1 categories, and foreign nationals seeking new J visas in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program. This suspension also applies to any foreign national dependents who are following to join the principal beneficiary of the visa.

• Foreign nationals currently in the United States on H-1B, H-2B,  L-1, or J-1 visas are not affected.

• The provisions of the Proclamation do not apply to any of the following:

• A lawful permanent resident of the United States.

• A foreign national who is the spouse or child of a U.S. citizen.

• A foreign national seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain.

• A foreign national whose entry would be in the national interest as determined by the Secretaries of State or Homeland Security, or their respective designees.

The Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, is authorized to recommend modifications to this Proclamation within 30 days of the effective date and every 60 days afterward.

The June 22 Proclamation also extended the effective period of the April 22 Proclamation, through December 31.

Who is affected?

The Proclamation applies to foreign workers seeking entry to the United States as H-1B, H-2B, certain J, and L-1 visa holders, who are

• Outside the United States on the effective date of the Proclamation;

• Do not have a valid nonimmigrant endorsed visa stamp in their passport on the effective date of the Proclamation; and

• Do not have other travel documentation that is valid as of the effective date of the Proclamation.

The Proclamation is not retroactive. Those foreign nationals who have a valid visa and are either in the United States or abroad as of the effective date are not covered. Further, the Department of State has confirmed that no prior valid visas will be revoked under this Proclamation.

Visa holders who are already legally in the United States do not need to renew their visas to remain in the United States. Foreign nationals who leave the United States must have valid unexpired visas to be re-admitted.

We do not recommend international travel at this time. A person who leaves the United States may not be allowed to re-enter for a variety of reasons. There is the uncertainty as to how the Proclamation will be interpreted and enforced. There are also immigration restrictions and COVID-19-related travel restrictions that can be implemented with little or no notice. Moreover, most U.S. Embassies and Consulates remain closed and functioning only for emergent visa services.

Exemptions

The following individuals are exempted from the entry restriction even if they seek entry in the nonimmigrant visa classifications covered by the Proclamation:

• As indicated, individuals present in the United States on the effective date of the Proclamation.

• As indicated, individuals who hold valid visas or other acceptable U.S. travel documentation on the effective date of the Proclamation.

• Permanent residents of the United States (for example, Green Card holders).

• Spouses and children of U.S. citizens.

• As indicated, individuals providing temporary labor or services essential to the U.S. food supply chain.

The Proclamation allows the entry restriction to be “waived” based on the national interest. This could apply to the following additional individuals:

• Those who are critical to the defense, law enforcement, diplomacy, or national security of the United States.

• Those who are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized.

• Those who are involved with the provision of medical research at U.S. facilities to help the nation combat COVID-19.

• Those deemed necessary to facilitate the immediate and continued economic recovery of the United States.

The Departments of Homeland Security and State are expected to develop specific criteria to determine what documentation and processes will be implemented to evaluate the additional national interest “exempted” individuals.

Additional measures

The Proclamation also contemplates prospective actions to further the stated purpose of protecting U.S. workers. These actions include (1) considering regulations to ensure that EB-2 or EB-3 immigrant visa holders do not disadvantage U.S. workers, (2) ensuring that individuals will not be able to apply for visas or other benefits without being registered with biographical and biometric information, (3) undertaking investigations of Labor Condition Application violations, and (4) considering regulations or other actions regarding the efficient allocation of H-1B visas and “ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers.”

We will continue to keep you updated on this topic.

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