This updates our Legal Alert of April 22, 2020, which discussed President Trump’s 60-day suspension on the entry of individuals applying for immigrant visas (“green cards”) outside of the United States. Once again citing the high U.S. unemployment rate and the need to protect Americans' jobs, on June 22, 2020, President Trump announced an extension of that entry ban for would-be immigrants until December 31, 2020 and expanded it to foreign nationals under several temporary nonimmigrant work visa categories. The Proclamation left a number of questions unanswered. This Alert was updated on June 25, 2020, with additional analysis regarding the applicability to visa-exempt Canadian citizens and visas issued prior to the effective date of the Proclamation. The updated information is in bold italics, below.
When does the newly expanded travel ban become effective?
12:01am EST on Wednesday, June 24, 2020.
When does it end?
December 31, 2020, but may be continued as necessary.
Who is affected?
- Those applying for immigrant visas (“green cards”) outside of the U.S.;
- H-1B visas for professionals and their family members in need of H-4 status;
- H-2B visas for temporary, non-agricultural workers (e.g. construction and hospitality workers) and their family members in need of H-4 status;
- L-1A and L-1B visas for intracompany transfers and their family members in need of L-2 status; and
- Certain J-1 exchange visitors (specifically Interns, Trainees, Camp Counselors, Au Pairs and Summer Work/Travel visitors) and their family members in need of J-2 status.
Does the Proclamation ban all H-1B, H-2B, L-1, and J-1 workers and their families?
No. The U.S. will only stop the entry of the foreign nationals described above who (1) are outside the U.S. as of 12:01 am EST on June 24, 2020; (2) do not already have a valid nonimmigrant H-1B, H-2B, H-4, L-1, L-2, J-1, or J-2 visa in their passports; and (3) do 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 on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission. Individuals with valid H-1B, H-2B, H-4, L-1, L-2, J-1, and J-2 visas issued prior to the effective date of the Proclamation (June 24, 2020, at 12:01 am (ET)) will be allowed entry after the suspension goes into effect regardless of whether they have come in before or not on that visa.
The President’s Proclamation does not stop the entry of those who already have a valid, unexpired H-1B, H-2B, L-1, or J-1 visa (or the corollary dependent family visas H-4, L-2, and J-2) in their passports. In addition, the Proclamation does not invalidate the status of H-1B, H-2B, L-1, or J-1 foreign nationals and their families who are currently inside the U.S. Such individuals may still apply to U.S. Citizenship and Immigration Services (“USCIS”), to change or extend their status without having to leave the country.
Are there any exemptions?
Yes. The travel ban exempts:
- U.S. Lawful Permanent Residents (i.e. “green card” holders);
- The spouse or children of a U.S. citizen;
- Any alien who would provide temporary labor or services essential to the United States’ food supply chain;
- Any alien whose entry would be deemed to be “in the national interest”;
- A foreign national child who would “age out” of a visa as a result of this entry suspension, at the discretion of the Department of Homeland Security.
In addition, please note there are many temporary nonimmigrant work visa categories which are not included in the President’s announcement such as J-1 visas for physicians, research scholars, and professors, O-1, E-1, E-2, E-3, P, H-1B1, and TN.
Which foreign nationals qualify for the “national interest” exemption?
The Proclamation leaves it up to the Department of State, Department of Labor and the Department of Homeland Security to establish standards to define categories of foreign nationals who are deemed to be in the “national interest,” but it specifically includes foreign nationals who are:
- critical to the defense, law enforcement, diplomacy, or national security of the United States;
- involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
- involved with the provision of COVID-19 medical research at U.S. facilities; or
- necessary to facilitate the immediate and continued economic recovery of the United States.
We will update this Alert as clarifying guidance is issued.
Who evaluates a foreign national’s eligibility for one of the exemptions?
U.S. consulates and embassies overseas will be responsible for adjudicating a foreign national’s eligibility for one of the exemptions at the time of an H-1B, H-2B, L-1, or J-1 visa interview. Specifically, the adjudicating consular officer has discretion in this matter. The burden will be on the visa applicant to establish his or her eligibility for one of the exemptions.
What evidence must be submitted to establish a would-be H-1B, H-2B, L-1, or J-1 visa applicant’s eligibility for an exemption?
The Proclamation is silent on this point but directs the State Department to issue implementing procedures and adjudication standards to guide U.S. consular posts and embassies abroad in making eligibility assessments. In addition, the President directs the Department of Homeland Security to issue implementing procedures to guide U.S. Customs and Border Protection agents on properly admitting foreign nationals to the U.S. under this Proclamation. Therefore, we believe additional clarification and guidance is forthcoming.
Does the Proclamation limit entry of Canadian citizens under H-1B, H-2B, L-1, or J-1 nonimmigrant status?
No. The proclamation does not apply to Canadian citizens who seek entry under H-1B, L-1, and J-1 categories because they are considered “visa-exempt” for purposes of these categories, which means they do not have to apply for any visa at a US consulate abroad before seeking entry to the U.S.
Analysis and Employers' Bottom Line
The June 22 Presidential Proclamation signals the Trump Administration’s continued focus on restricting U.S. immigration. The Proclamation specifically targets H-1B, H-2B, L-1, and some J-1 visa categories, which are four commonly used visas by U.S. companies. The order temporarily restricts only the entry of foreign nationals who are outside the U.S. on June 24, 2020 without a valid H-1B, H-2B, L-1, or J-1 visa or other re-entry document for the U.S., with certain exemptions. It does not impact the legal status of H-1B, H-2B, L-1, and J-1 workers inside the U.S., but restricts their ability to travel internationally after the visa inside their passport expires. Therefore, U.S. companies can continue employing H-1B, H-2B, L-1, and J-1 workers who are already in the U.S. For the most part, employers can manage extensions and changes of status for these workers from within the U.S. by filing petitions through USCIS which would avoid the need for these workers to leave the U.S. for consular processing of visas.
The June 22 Presidential Proclamation will adversely impact employers who rely on obtaining foreign talent through the annual H-1B cap sponsorship process. Specifically, employers who are sponsoring H-1B petitions under the Fiscal Year 2021 cap for foreign professionals who are outside the U.S., or those who are inside the U.S. now under a different nonimmigrant status who cannot benefit from a change of status and would be required to apply for a visa abroad, will not be able to enter the U.S. to start work before the start of 2021. This could result in work delays and may cause some companies to reconsider sponsorship, in which case immigration counsel should be consulted. Please note, this proclamation does not apply to visa-exempt Canadian citizens who may still enter the U.S. under the H-1B, L-1 or J-1 categories without any visa.
It is important to note that although the President’s announcement does not include many other temporary nonimmigrant visa programs, such as J-1 visas for physicians, research scholars, and professors, O-1, E-1, E-2, E-3, P, H-1B1, and TN, these workers must also carefully consider the necessity of international travel to avoid getting stuck outside of the U.S. due to a variety of other actions implemented since the COVID-19 national emergency was issued, including an ongoing entry ban on individuals arriving from 30+ countries and the suspension of all but “mission critical” visa services at U.S. consular posts until further notice.
Finally, employers should expect to see additional efforts to curtail immigration. For example, in the June 22 Proclamation, the President directs the relevant federal agencies, including the Department of Labor and Department of Homeland Security, to issue new regulations to further restrict access to the H-1B visa program such as by increasing threshold skill and wage levels. Unlike the Presidential Proclamation, which has virtually immediate effect, the promulgation of new agency regulations will take time and will likely have to go through a public notice and comment period, so any changes to H-1B eligibility requirements will not be immediate. In addition, the President directs relevant federal agencies to periodically review the Proclamation, initially in 30 days and every 60 days thereafter, to determine if any modifications are required.
Considering the June 22 Proclamation and the interplay of a myriad other actions taken in pursuit of public health and economic recovery, U.S. employers may be best served to pause or limit the international travel of their foreign workers until the various immigration restrictions/bans are lifted. In all cases, it is critical to stay apprised of developments and discuss the soundness of any international travel with immigration counsel to understand any risks. As the Administration issues clarifying guidance, we will issue an update to this Alert.
If you have any questions regarding the issues addressed in this Alert or have other business immigration questions, please contact the author of this Alert, Geetha Adinata, partner and head of FordHarrison's Business Immigration practice group at gadinata@fordharrison.com, or partner Charlie Roach, croach@fordharrison.com. Of course, you may also contact the FordHarrison attorney with whom you usually work. For information on various immigration-related coronavirus issues, including governmental travel bans, changes in immigration processes, suspension of government services, and office closings as well as practical tips on how businesses can manage the impact of this global healthcare crisis as it relates to immigration issues, please see our Coronavirus Taskforce Immigration page.