Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
As anticipated, President Trump issued a proclamation on June 22, suspending the ability of foreign nationals in common employment-based non-immigrant (temporary) categories to enter the United States. The proclamation, which is valid until December 31, 2020, places a suspension on the L-1, H-1B, H-2B, and specified J-1 categories. As explained, below, while the proclamation is significant, there are limits to its scope as well as exceptions that can be requested based upon the nature of the work that will be performed by the sponsored foreign national.
The nuances of how the proclamation is interpreted continue to evolve. The US Department of State (DOS), US Department of Homeland Security (DHS)—particularly the US Customs and Border Protection (CBP) —will be involved initially in the implementation. The US Department of Labor (DOL) is also involved with refining the scope of exceptions based upon economic benefit. As explained, below, notable interpretive developments include: CBP verbal confirmation that the proclamation does not apply to Canadian citizens and DOS written responses stating that they will not renew visas in the subject category.
Summary and Key Issues
The presidential proclamation prohibits entry to the United States by non-immigrants in the following categories:
- H-1B and H-2B (and their dependent spouses/children).
- L-1A and L-1B (and their dependent spouses/children).
- J-1s in specific subcategories of: intern, trainee, teacher, camp counselor, au pair, or summer work program (and their dependent spouses/children).
Within the specified categories, the presidential proclamation applies only to foreign nationals that meet all of the following limitations:
- Is outside the US on June 24.
- Does not have a nonimmigrant visa that is valid on June 24.
- Does not have an official travel document (other than a visa) that is valid as of June 24.
The proclamation limits entry to the United States; it does not limit the ability to extend or change non-immigrant status from within the United States. This means that foreign nationals present in the United States can keep their existing statuses and request any extensions or changes
The proclamation contains exceptions for essential food supply chain workers and others whose entry is found to be in the US national interest.
Who is Not Subject to the Proclamation
The proclamation only applies to the H-1B, H-2B, L-1A, L-1B, and specified J-1 non-immigrant categories (and their dependent spouse/children). Foreign nationals who hold or are eligible for any other non-immigrant category are not impacted by the June 22 proclamation.
The proclamation does not apply to people who are in the United States as of June 24. Individuals who are in the United States on the effective date fall outside of the proclamation's limits. These individuals can extend their status, change their status, and—subject to the visa renewal restrictions announced by DOS—should otherwise be able to obtain immigration benefits for which they are eligible.
The proclamation does not apply to people who have valid non-immigrant visas as of June 24. This includes individuals who are outside the United States as of that date, whether or not they have previously entered the United States.
Canadian Exception Per CBP
According to information released by the American Immigration Lawyers Association (AILA), the CBP has confirmed its view that the proclamation is not applicable to Canadian citizens. This is tied to the fact Canadians are visa-exempt. While CBP has stated to AILA that this information and related guidance would be transmitted to Ports of Entry, as of this writing, there is not a publicly available CBP memorandum or directive regarding this important policy decision.
No New Visas in Listed Categories Per DOS Twitter Thread
The DOS issued FAQs on the June 22 presidential proclamation via Twitter. Included in these FAQs was verification that existing visas would not be revoked. The DOS also confirmed that individuals holding valid visas remain eligible to enter the United States. However, in connection with this confirmation, DOS also stated that "those whose visas expire and apply for renewal are subject to the proclamation." While this interpretation has no immediate impact, due to consular closures, it would expand the application of the proclamation beyond its stated limits—as it includes all H-1s, L-1s, H2-Bs, and subject J-1s (and their families) to the proclamation should they travel outside the United States without a valid visa "stamp" in their passports.
Other Considerations and Risks
There are several country-specific travel suspensions, including the United Kingdom, Ireland, Schengen Area (Europe), Brazil, China, and Iran. These suspensions prohibit reentry to the United States within a 14-day period after travel to the travel suspension countries. These restrictions are separate from the June 22 proclamation and must be considered when making any travel plans.
The US consulates have ceased routine visa processing on a global basis due to COVID-19, and most consulates remain closed. Anyone who requires a visa to enter or re-enter the United States, should factor these circumstances into their travel planning. Additionally, the FAQs issued by DOS, discussed above, prevent visa renewal in the suspended categories.
The multiple presidential proclamations and related travel suspensions may create difficulties even for those who are not subject to these restrictions. It is generally advisable to carry documentation addressing eligibility, in the event of any potential misunderstandings on these issues.
The proclamation extends to dependent family members, but does not exempt dependents automatically if the primary family member does not fall under the suspension. Thus, there are many situations in which the proclamation will result in family separation. Each family member must be considered separately when analyzing the proclamation's impact and available immigration options.
Exceptions and Waivers
The proclamation contains exceptions that allow for permission to be granted to foreign nationals who would otherwise be ineligible to enter the United States under the terms of the proclamation. These exceptions include:
- Spouses and (minor, unmarried) children of US citizens.
- Foreign nationals who are seeking to enter the United States to provide services essential to the US food supply chain.
- Foreign nationals whose entry to the United States is in the national interest. This national interest exception will be more fully defined by DOS, DOL, and DHS. The proclamation states that it includes those whose presence is necessary to facilitate immediate and continued US economic recovery. Also included are those involved in COVID-related medical care and treatment, and others critical to US national security, defense, and law enforcement.
Conclusion
The interpretation of the latest proclamation continues to evolve, under ongoing debate and pushback from within many sectors of the business community. Based on the numerous inquiries we have received in response to this proclamation, many US employers will need to request exceptions for their employees in vital US industries. At a minimum, in order to avoid further economic disruption, the requests for food chain and national interest related exceptions must be processed in a transparent and efficient manner. We currently are guiding employers who are in need of these exceptions, and are available to guide others on their options in light of the June 22 presidential proclamation.