Clarifications to Presidential Proclamation 10014 Issued on June 22, 2020

As discussed in our recent client alert, Presidential Proclamation 10014 limits the entry to the U.S. of foreign nationals in H-1, H-2B, L-1, certain categories of J-1, and their dependent spouses and children if they did not have a valid visa stamp in their passports in the above classifications prior to the effective date of the Proclamation on June 24, 2020 at 12:01 AM Eastern Daylight Time. This entry ban is valid until at least December 31, 2020.

DOS Will Not Issue New Visas to Foreign Nationals in Affected Categories

The U.S. Department of State (DOS) has confirmed that it will not issue new H-1B, H-2B, L-1, or certain J-1 visas, or visas to their derivative spouses/children (H-4, L-2, and J-2), through December 31, 2020, unless an exception applies. The exceptions include:

  • Lawful permanent residents
  • Spouses or children of U.S. citizens (note: this does NOT include parents of U.S. citizens)
  • Any foreign national who will provide temporary labor or services that are deemed essential to the U.S. food supply chain
  • Any foreign national whose entry to the United States is deemed as in the national interest by the Departments of State, Homeland Security, or their designees

So while routine visas services continue to be suspended at U.S. consular posts worldwide as a result of the COVID pandemic, as resources allow, embassies and consulates may continue to provide emergency and mission-critical visa services. Mission-critical immigrant visa categories include applicants who may be eligible for an exception under the Proclamation. While embassies and consulates may process these types of visa applications, their ability to do so may be limited by local government restrictions and available resources. In addition, an applicant’s ability to travel to the U.S. may be impacted by local laws, regulations, and travel restrictions.

Please note that Presidential Proclamation 10014 does not affect the ability of H-1, H-2B, L-1, J-1, or their dependent spouses and children to apply for an extension of their nonimmigrant status with USCIS, or to obtain a change of status from another type of nonimmigrant status (such as F-1, TN, etc.) to any of these statuses with USCIS.

Visas Granted Prior to June 24, 2020 at 12:01 AM Eastern Daylight Time Continue to be Valid

U.S. Citizenship and Immigration Services (USCIS) has confirmed that individuals who were granted H-1B, H-2B, L-1, J-1, H-4, L-2, or J-2 visas before the effective date of the Presidential Proclamation (June 24, 2020 at 12:01 AM Eastern Daylight Time) are not subject to the Proclamation and may use their visas to enter or re-enter the United States. These visas continue to be valid for travel until the expiration date of the visa foils. The DOS has also confirmed that no valid visas will be revoked under the Proclamation.

Proclamation Does Not Affect Other Visa Categories

Furthermore, the Proclamation does not affect those who are outside the U.S. seeking to enter on other types of valid visas, including B-1/B-2, E-3, E-1/E-2, H-3, F-1, F-2, O-1/O-2/O-3, P-1, TN, etc. The Proclamation also does not bar the issuance of these types of nonimmigrant visas by U.S. consular posts (however, as routine visas services continue to be suspended at U.S. consular posts worldwide as a result of the COVID pandemic, it will not be possible to apply for these types of visas until the U.S. consulates reopen for visa services.) Finally, the Proclamation does not affect the ability of these nonimmigrants to apply for an extension of their nonimmigrant status with USCIS, or to obtain a change of status with USCIS.

Proclamation Does Not Apply to Visa-Exempt Canadians

U.S. Customs and Border Protection (CBP) headquarters has confirmed that Canadian citizens seeking to enter the United States in H-1, L-1, or J-1 nonimmigrant status are not subject to the Presidential Proclamation. Canadian citizens who are granted these statuses are visa exempt and may continue to enter the United States and work pursuant to these work visas.

Implications of Presidential Proclamation on H-1B1s

Presidential Proclamation 10014 does not specifically include reference to the H-1B1 classification for citizens of Chile and Singapore pursuant to the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78). There are nonetheless reports that U.S. consular posts are extending the Presidential Proclamation to H-1B1s pending implementing guidance from the U.S. Department of State and are currently denying H-1B1 visa applications under INA 221(g).

Premium Processing May Be Recommended for H-1B Petitions and EB-2 and EB-3 Category Immigrant Visa Petitions

Section 5 of the President’s June 22 Proclamation instructed the Departments of Homeland Security and Labor to possibly implement further restrictions regarding the H-1B nonimmigrant visa category as well as the EB-2 and EB-3 employment-based permanent residence categories. Given the likelihood of future regulations being issued by these agencies that would impose additional barriers for these categories, it may be wise for employers to consider requesting Premium Processing Service for I-129 Petitions for H-1B workers as well as I-140 Immigrant Petitions in the EB-2 or EB-3 classifications.

We are continuing to monitor the possibility of additional governmental actions and will apprise you of any additional updates. Please don’t hesitate to contact your attorney at McCown & Evans LLP if you have any questions.