On June 22, 2020, President Trump issued a "Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market During the Coronavirus Outbreak," effective June 24, 2020 through December 31, 2020. The Presidential Proclamation only applies to individuals outside the United States in certain temporary worker categories who did not have a valid visa or status document prior to the effective date. Canadian citizens are expected to be exempt.
The Proclamation also extends an earlier Presidential Proclamation banning new green card processing for some categories of individuals outside the United States, also effective through the end of 2020.
Nonimmigrant Categories Affected
The Proclamation suspends the entry of any individual seeking entry pursuant to four groups of nonimmigrant visas:
- 1. H-1B specialty occupation professionals and H-4 family members;
- 2. H-2B guestworkers and H-4 family members;
- 3. J-1 exchange visitors in intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and J-2 family members; and
- 4. L-1 intracompany transferees from multinational corporations – L-1A executives and managers and L-1B specialized knowledge personnel, and L-2 family members.
The Proclamation is expected to be triggered when the individual attends a visa appointment abroad or seeks entry into the United States. The ban only applies to an individual who:
- Is outside the United States on the effective date;
- Does not have a nonimmigrant visa that is valid on the effective date; and
- Does not have 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 to permit travel and entry into the United States.
The suspension and entry ban does not apply to the following groups:
- Any individual who will treat or research the novel coronavirus, though other health care workers will not be exempt;
- Any individual who will provide labor or services essential to the United States food supply chain;
- Any individual whose entry would be in the national interest, as determined by the Secretary of State or the Secretary of Homeland Security;
- Any lawful permanent resident of the United States; and
- Any spouse or child of a United States citizen.
Canadian citizens are expected to be exempt from the suspension because they are exempt from visa requirements in the listed categories.
Temporary Nonimmigrant and Other Categories That Are Not Affected
The Proclamation does not suspend all nonimmigrant categories and allows entry of the following:
- B-1/B-2 business visitors and tourists, and travelers under ESTA (Electronic System for Travel Authorization) who do not require visas;
- Temporary treaty categories, E-1 trader and E-2 investor visa application submission and processing;
- Study and work under the F-1, M-1 student and J-1 scholar categories;
- H-2A agriculture workers;
- K-1 fiancés;
- P-1/2/3 performers;
- O-1 extraordinary ability workers;
- R-1 temporary religious workers;
- TN (Trade NAFTA) professionals from Canada and Mexico; and
- VAWA victims of domestic violence.
Anticipated implications of the Proclamation include:
- Careful consideration is advised before travel abroad while implementation and interpretation remain unclear.
- For employers with petitions that United States Citizenship & Immigration Services (USCIS) already approved, the State Department is expected to refuse to issue the visa to the foreign worker unless the individual falls under an exemption, as listed above.
- Because USCIS processing does not specifically involve "entry" into the United States, USCIS should continue to accept and process petitions and applications, including extensions for foreign workers and their family members and H-1B cap petition filings for those foreign nationals selected in the recent H-1B cap lottery, which must be filed by June 30.
- H-1B beneficiaries outside the United States still may apply for a visa, but delays and denials should be anticipated, unless the individual clearly falls within an exemption.
The Proclamation identifies a number of procedural and regulatory changes that may be announced in the near future:
- Biometrics: Biographical and biometric information, including but not limited to photographs, signatures, and fingerprints, will be required as a condition of entry as well as a condition of visa issuance.
- Work Authorization Restrictions: No alien arrested for, charged with, or convicted of any criminal offense in the United States, and no alien who is inadmissible or deportable on any grounds may obtain work authorization.
- Review of Approved H-1B Petitions: The Department of Homeland Security must take action, including investigations, if appropriate, to ensure that the presence in the United States of H-1B nonimmigrants does not disadvantage U.S. workers.
- Review of Employment-Based Green Card Cases: The Department of Homeland Security and Department of Labor must take action to ensure that the presence in the United States of those seeking or under EB-2 and EB-3 categories do not disadvantage United States workers, even where the employer already received certification after a labor market test.
For assistance or clarification on any of these issues, contact our office. Our firm's technology and dedicated personnel enable us to continue serving clients without any significant interruption in services.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
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