| On June 22, 2020, President Donald Trump issued Presidential Proclamation 10014 suspending the entry to the U.S. of foreign nationals in certain nonimmigrant worker classifications until at least December 31, 2020. This Proclamation also extends the President’s April 22, 2020 Proclamation restricting entry to the U.S. for new immigrants.
Who is Affected by This Proclamation?
Foreign nationals in the following temporary worker categories who are outside of the U.S. on June 24, 2020 and do not hold a valid nonimmigrant visa or other valid travel document (transportation letter, boarding foil, or Advance Parole document) are banned from entering the U.S. or being issued a new U.S. nonimmigrant visa starting on June 24, 2020 at 12:01 AM Eastern Daylight Time:
- H-1B professional workers
- H-2B temporary non-agricultural workers
- J-1 exchange visitors participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program
- L-1 intracompany transferees
- Dependent spouses and children of these visa holders
The Proclamation will only apply to an individual identified above if they are:
- Outside the United States on the effective date of the Proclamation;
- Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and
- Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or Advance Parole document), valid on the June 24, 2020 effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the U.S.
It is unclear if Canadian citizens in the listed nonimmigrant visa categories who are outside of the U.S. on the June 24, 2020 effective date will be allowed to enter the U.S. As Canadians are visa exempt, they typically are not issued a nonimmigrant visa in their passport.
The President also extended the validity of Proclamation 10014 of April 22, 2020 temporarily banning the entry to the U.S. for new immigrants. For further details on this previously issued travel ban, please reference our client alert.
Who is Exempt from This Proclamation?
To reiterate, this Proclamation DOES NOT AFFECT TEMPORARY WORKERS IN THE LISTED CATEGORIES WHO WERE IN THE U.S. OR OUTSIDE OF THE U.S. ON JUNE 24, 2020 AND HAD A VALID H-1B, L-1, OR J-1 VISA STAMP AS OF THAT DATE, OR THEIR DEPENDENTS.
- 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
What Waivers are Available?
For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any 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 this proclamation or Proclamation 10014.
Consular officers have discretion to determine if an individual falls within one of the exempted categories outlined above. The Trump Administration has apparently approved very few waivers in connection with past entry bans, so we expect that national interest waivers will be extremely limited and difficult to secure.
When Does it Take Effect?
This Proclamation takes effect on June 24, 2020 at 12:01 AM Eastern Daylight Time and will expire on December 31, 2020. The President has reserved the right to further extend the Proclamation and allows the Department of Homeland Security to modify it as needed within 30 days of the June 24, 2020 effective date and every 60 days thereafter.
Possibility of Additional Restrictions Impacting Foreign Nationals in the U.S.
In Section 5 of the Proclamation, the President instructs the Department of Homeland Security and Secretary of Labor to implement regulations or take other unspecified actions regarding the H-1B classification and the EB-2 and EB-3 employment-based green card categories to ensure that U.S. workers are not disadvantaged by foreign nationals already in the U.S. The Proclamation also directs the Department of Labor to undertake investigations of Labor Condition Application (LCA) violations to ensure that employers filing H-1B petitions or employing H-1B workers are complying with all applicable regulations.
We have no additional information to provide at this time about such other possible restrictions that could be enacted to impact H-1B holders or green card applications. We will be closely monitoring any governmental actions that are implemented pursuant to this section of the Proclamation.
Practical Implications of the Proclamation
To reiterate, individuals in H-1B, H-4, H-2B, L-1A, L-1B, L-2, J-1, and J-2 nonimmigrant petitions who are in the United States as of 12:01 AM Eastern Daylight Time on June 24, 2020 are NOT IMPACTED by this Proclamation. Those with an expired visa stamp in any of these categories and who do not have another valid travel document such as Advance Parole are strongly advised not to depart the United States, as it may be impossible for the individual to renew their visa (or gain a national interest exemption) and return to the U.S. until after the December 31, 2020 effective date of this Proclamation (or later if it is further extended).
Employers may continue to file in-country Change of Employer, Change of Status, and Extension of Status petitions on behalf of eligible H-1B, H-4, H-2B, L-1A, L-1B, L-2, J-1, and J-2 beneficiaries. Employers who have secured USCIS approval notices with a request for consular notification in connection with the above categories of nonimmigrants are encouraged to contact their attorney at McCown & Evans LLP to discuss the possibility of filing a new Form I-129 Petition to request an in-country Change of Employer, Change of Status, or Extension of Status. Employers are also encouraged to contact our firm for guidance on other possible nonimmigrant work authorization options for foreign nationals who are outside of the U.S.
While the Proclamation purports to protect U.S. workers from the economic downturn stemming from the coronavirus pandemic, no evidence was offered to demonstrate that individuals in any of these visa categories take jobs from U.S. workers or otherwise harm the economy. In the past few weeks, members of Congress, employers, business groups, and universities have made contrary arguments, voicing their opposition to the anticipated ban and calling the proposal detrimental to the economy. Legal challenges to the ban are expected.
McCown & Evans will continue to monitor this issue and will provide updates as additional information is released. |