BREAKING IMMIGRATION NEWS: President Trump Issues New “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”

DHP Immigration News Alert

On June 22, 2020, President Trump issued a new presidential proclamation (“PP 6/22/2020”) that extends Presidential Proclamation 10014 (“PP10014”) from April 22, 2020. This new proclamation stops foreign nationals from entering the U.S. on certain employment-based nonimmigrant visas and extends the ban already in place from “PP10014.” President Trump explained in the new proclamation that the entry of these nonimmigrant workers “presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

When Does the Order Take Effect?

The new proclamation takes effect on June 24, 2020 at 12:01 AM ET. It will remain in effect until December 31, 2020 and may be extended as necessary. Within 30 days of the effective date of this proclamation and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, will reevaluate and recommend any necessary modifications.

Extension of Presidential Proclamation 10014 from April 22, 2020

Presidential Proclamation 10014 of April 22, 2020, suspended the entry of certain immigrants into the U.S., subject to certain exceptions, until June 21, 2020. The new proclamation of June 22, 2020 extends the restrictions of “PP10014” until at least December 31, 2020.

Expanded Restrictions

According to PP 6/22/2020, aliens are suspended from entering the U.S. starting on June 24, 2020 if both of the following conditions apply:

  1. First, aliens who are seeking to enter the U.S. on one of the following visas:
    • H-1B or H-2B visa, and any alien accompanying H-1B or H-2B visa holder in H-4 visa;
    • J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying a J visa holder; and
    • L visa, and any alien accompanying an L visa holder in L-2 visa.
  2. Aliens who meet Criteria #1 above and who are:
    • Physically outside of the U.S. on the effective date of this proclamation (June 24, 2020);
    • Do not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
    • 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 them to travel to the U.S. and seek entry or admission.

Exemptions

The proclamation does NOT apply to the following foreign nationals:

  • Any lawful permanent resident of the United States;
  • Any alien who is the spouse or child of a United States citizen;
  • Any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  • Any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Standards for Exemption Under “U.S. National Interest”

The new proclamation clarifies and defines the national interest exemption to cover aliens who:

  • Are critical to the defense, law enforcement, diplomacy, or national security of the U.S.;
  • 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 U.S. combat COVID-19;
  • Are necessary to facilitate the immediate and continued economic recovery of the U.S.; or
  • Are children who would, as a result of this proclamation or “PP10014,” age out of eligibility for a visa.

How Will This Proclamation Be Enforced?

U.S. Consulates around the world have discretion to determine whether an individual has established his/her eligibility for an exception under this proclamation.

What if I am already in the U.S. with an H, L, or J visa?

Individuals who are already in the U.S. with an H, L, or J visa and need to change or extend their status are not included in the ban and are still able to file their petition with USCIS (U.S. Citizenship and Immigration Service).

What if I was recently issued an H, L, or J visa through consular processing?

Individuals who have already obtained a nonimmigrant visa, including an H, L, or J visa, through consular processing that is valid on the effective date of this proclamation, are not subject to this ban and may travel with a visa.

What if I recently received an H or L visa petition approval from USCIS and was in the process of obtaining a visa through consular processing?

Individuals whose initial H or L visa petition have recently been approved by USCIS, and were waiting for the U.S. Consulates to resume visa services, are not able to enter the U.S. now due to this new proclamation (unless they are covered by one of the exemptions mentioned above). This individuals must wait until at least December 31, 2020 before they can apply for their visas.

In case the validity of the I-797 approval notice expires in the meantime, a new petition will have to be filed with USCIS before the individual is able to apply for a new H or L visa through consular processing after this proclamation expires on December 31, 2020.

What if my new H-1B petition was recently approved with the effective start date of employment on October 1, 2020, and I am currently outside the U.S. without a valid H-1B visa or alternative travel document?

Unfortunately, individuals who are currently outside of the U.S. without a valid H-1B visa or other alternative travel document (i.e. F-1/OPT that is still valid), are not able to enter the U.S. now due to “PP 6/22/2020,” unless they are covered under the exemptions (such as food supply chain, national interest workers, Corona virus-related healthcare workers, etc.) These individuals must now wait until at least December 31, 2020 before they can apply for their H-1B visas through consular processing.

Can other nonimmigrant and/or immigrant visa categories be potentially impacted by this proclamation?

The new proclamation directs the Secretary of Labor, in consultation with the Secretary of Homeland Security, to consider new regulations or other appropriate actions to ensure that the foreign nationals who have been admitted or are seeking admission, on an EB-2 or EB-3 immigrant visa or H-1B nonimmigrant visa, do not place U.S. workers at a disadvantage in the U.S. work force. Although it is unclear as to what additional measures or restrictions may be implemented, there might be some additional actions taken by the government agencies to ensure that EB-2, EB-3 and H-1B workers do not limit working opportunities for other U.S. workers.

Other non-immigrant visa categories, such as E-1, E-2, E-3, F-1 (OPT/STEM OPT), O-1, R-1, TN and other employment-based and family-based immigrant visa categories are not impacted by these proclamations and can travel with their valid visas, subject to normal travel restrictions from COVID-19.

Ideas to Consider from David Hirson & Partners, LLP

  • In light of this proclamation, all visa holders, including H, L and J visas holders, should avoid leaving the U.S. for the time being, even with their valid visas, and consider extending or changing status in the U.S. if necessary.
  • If you must travel outside of the U.S., it is imperative that you consult with your immigration attorney and ensure that your visa is still valid before leaving the U.S.
  • Employers should be aware that these presidential proclamations only impact individuals who do not yet hold nonimmigrant visas or other alternative travel documents. In case an employee is directly impacted by these proclamations and is not able to enter the U.S. to work for the U.S. company as initially planned, the company with different overseas offices may consider hiring the foreign employee in a foreign country, until the foreign employee is able to obtain his/her visa.
  • L-1A executives/managers, who are directly impacted by this proclamation, should prepare an effective action plan to remotely manage and oversee U.S. business operations until the proclamation ends.
  • Individuals, who are not impacted by this ban, should remember that they may encounter more difficult questions from U.S. consular officers and should be prepared to explain and prove that they are not affected by this proclamation. Aliens should always consult with a competent immigration attorney before making any travel plans, regardless of whether they are directly impacted by the proclamation or not.
  • In case you think you are qualified for one or more of the exemptions described in the proclamation and want to consult with a professional immigration attorney, please contact David Hirson & Partners, LLP to further discuss your case.