Presidential Proclamation Suspending Entry of Certain Employment-Based Nonimmigrant Workers

A Presidential Proclamation, issued yesterday and effective June 24, 2020 at 12:01 EDT, restricts entry to the United States of certain nonimmigrants and their dependent family members until December 31, 2020, with limited exceptions.

What Types of Work Visas Does the Proclamation Impact?

The Proclamation impacts nonimmigrants who are seeking to work in the U.S pursuant to the following visas:

  • H-1B professional specialty occupation workers;
  • H-2B temporary/seasonal workers;
  • J exchange visitors, but only to the extent they are interns, trainees, teachers, camp counselors, au pairs, or summer work travel program participants (other J-1 categories are not impacted); and
  • L-1 intracompany transferees, applied to both L-1A executives/managers and to L-1B specialized knowledge workers.

To Whom Does This Proclamation Apply?

Importantly, the Proclamation applies only to the nonimmigrants in the above categories who:

  • Are outside the United States on the effective date of the Proclamation;
  • Do not possess a nonimmigrant visa that is valid on the effective date of the Proclamation; and
  • Do not possess an official travel document other than a visa that is valid on the effective date of the Proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission (one familiar such document is an advance parole document).

The Proclamation does not affect foreign nationals holding valid U.S. visas or other travel documents, or those already present in the U.S. as of the effective date of the ban. However, the Proclamation leaves many questions unanswered. For example, the Proclamation does not address how Canadian nationals seeking admission in the above employment-based categories, who are not required to obtain a visa to enter the United States, will be impacted.1 Also yet unclear is the impact of the Proclamation on the foregoing visa programs established in treaties with other countries, like the NAFTA agreement with Mexico (and Canada), although TNs are not affected by this Proclamation.

In addition, effective immediately, the Proclamation extends the President's April 22 entry ban (Proclamation 10014), placing a moratorium on the issuance of certain immigrant visas through December 31, 2020. Under that prior entry ban, U.S. consulates have been directed not to issue employment-based, family-based or Diversity Lottery immigrant visas (a/k/a “green cards”), with limited exceptions.

What are the Exemptions?

The Proclamation also sets forth certain, limited exemptions. The following categories are exempt:

  • Any lawful permanent resident of the United States;
  • Spouses and children of U.S. citizens;
  • Foreign nationals seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  • Any foreign national whose entry would be in the national interest as determined by DHS or DOS. The Secretaries of State, Labor and Homeland Security have been ordered to establish standards for this category, including parameters for granting this exemption to: those 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 United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States. There is also authority granted to exempt aging-out children. The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Notably, even foreign nationals who are exempt from the new Proclamation also remain subject to consular/embassy closures and limited services, as well as ongoing COVID-19 travel restrictions, which could impede their ability to obtain visa stamps and/or travel to the United States. Please consult with your counsel for any and all international travel and visa-stamping related issues.

What Does This Mean for Employers?

For employers, this Proclamation means that many foreign nationals (who are outside the U.S.) with plans to apply for H-1B, H-2B, L-1 or J-1 visas to work in the U.S., as well as their accompanying or joining dependents, may be unable to do so until the ban expires at the end of 2020. An employer who is relying on such a foreign national to contribute to its workforce will be forced to forego its plans unless the employer can successfully obtain a waiver of the entry restrictions unless the ban is enjoined by a court (there certainly will be court challenges).

Even though the Proclamation does not affect foreign nationals who are currently present in the United States or who already hold valid visas, future regulations could make it more difficult for these individuals to change to or extend H-1B status. In fact, the Proclamation directs the immigration agencies to develop regulations to further restrict the H-1B program and to toughen standards for certain categories of employment-based permanent residence (EB-2 and EB-3 specifically) to ensure U.S. workers are not disadvantaged. These regulations could impose tougher labor certification standards, more stringent H-1B eligibility criteria, and wage obligations coupled with increased worksite enforcement investigations, including for Labor Condition Application (LCA) violations for those already within the U.S., including those seeking to extend H-1B status from within the U.S. Moreover, new regulations could change the way the H-1B quota is allocated to give priority to certain classes of beneficiaries, including prioritizing the highest paid H-1B workers in the numerical cap.

In light of this Proclamation, we urge clients to pursue extensions of H-1B/H-4 status, and permanent residence in the EB-2 and EB-3 categories as soon as possible.

Our team of dedicated immigration attorneys continue to review the Proclamation, its impact and any attempt to challenge its enforceability through the courts. We remain available in these difficult times to assist with finding unique solutions to your complex immigration needs and evolving challenges.

1By way of a new development, there is good news for Canadian citizens concerning the latest Proclamation. On June 24, 2020, the US Customs & Border Protection (CBP) headquarters confirmed that Canadians entering as H, L or J nonimmigrants are exempt from this latest Proclamation, and that guidance has been provided to CBP ports on this issue. This exemption does not apply to mere Canadian permanent residents or work permit holders, however.