On June 20, 2020, President Trump issued a proclamation suspending the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States. The proclamation is effective June 24, 2020, and remains in effect through at least December 31, 2020, with the possibility of continued extension and modifications. The proclamation also extended President Trump’s April 2020 proclamation, which suspended the entry of certain immigrants into the United States, effective immediately and through the end of the year.
Who Is Affected by the June 2020 Proclamation?
The June 2020 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 only applies to those individuals identified above if they are:
(a) outside the United States as of June 24, 2020;
(b) do not have a valid nonimmigrant visa on June 24, 2020; and
(c) do not have an official travel document (such as a transportation letter, boarding foil, or advance parole document) valid on June 24, 2020, or issued thereafter, permitting the individual to be admitted to the United States.
* Note: The order does not apply to individuals already in the United States
Who Is Not Affected by the June 2020 Proclamation?
The June 2020 Proclamation will not apply to following individuals, even if outside of the United States as of June 24, 2020:
- lawful permanent residents of the United States;
- spouse or child of a United States citizen;
- any individual seeking entry to provide temporary labor or services essential to the United States food supply chain; and
- any individual whose entry would be in the “national interest” as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
The term “national interest” in this context is not the same as the national interest waiver for employment-based green cards. “National interest” for purposes of the exemption for this proclamation, including 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 the proclamation.
The discretion to decide if an application meets one of the criterion above is in the discretion of the consular officer who interviews the visa applicant.
The proclamation does not apply to visa-exempt Canadians entering as H, L or J nonimmigrants, according to CBP announcements. However, we recommend that any Canadian seeking an inadmissibility waiver contact an attorney, as CBP has reportedly eliminated its adjudication of inadmissibility waiver applications at preclearance stations.
The Proclamation does not apply to individuals seeking asylum, refugee status, or withholding of removal or protection under the Convention Against Torture.
What Are Additional Effects of the June 2020 Proclamation?
The Proclamation also calls for additional investigations of Labor Condition Applications (LCAs) violations and H-1B compliance. This means that employers with existing H-1B workers should be prepared for additional investigations at the job site.
The Proclamation also calls for additional future regulations to make the H-1B and green card processes more restrictive.
What Should I Do?
President Trump’s issuance of immigration orders during the COVID-19 crisis has proven unpredictable and disingenuous. As such, Becker & Lee LLP recommends avoiding international travel if at all possible if already in the United States. If international travel becomes necessary, travelers should contact Becker & Lee LLP before making plans to depart the United States. Nonimmigrants should consider applying for visa extensions with U.S. Citizenship and Immigration Services, rather than renewal at a consulate abroad.
Is this Proclamation Legal?
We believe it is likely that this proclamation will be litigated, which could potentially impact its implementation. We hope that the Proclamation will be put on hold through federal court litigation. We will continue to monitor ongoing changes and will update this blog accordingly.
By: Camiel Becker and Clare Bienvenu