President Donald Trump on June 22 issued an amendment to the Presidential Proclamation previously released in April, which suspended the admission of immigrant aliens to the United States. The amendment limits entry into the United States of H-1B, H-2B, J-1, and L-1 nonimmigrants and suspends issuance of those visas at consulates abroad, among other restrictions.
Highlights of the new amendment:
- Subject to exceptions, limits entry into the United States of H-1B, H-2B, J-1, and L-1 nonimmigrants
- Suspends issuance of new H-1B, H-2B, J-1, and L-1 visas at consulates abroad
- Impacts individuals currently outside the United States; a person in the United States is exempt
- A person with a valid nonimmigrant visa as of June 24 is exempt, but this exemption may be interpreted more restrictively by the agencies than the language suggests
- A person with an official travel document other than a visa valid on or after June 24 is exempt
- Individuals who are abroad on June 24, who do not have a nonimmigrant visa on June 24, and who need an H-1B, H-2B, J-1, or L-1 visa are most likely to be impacted
The newly released amendment states that subject to certain exceptions individuals seeking to enter the United States pursuant to the following nonimmigrant classifications will not be granted admission:
- H-1B visa, and accompanying or following to join aliens (such as dependent family members);
- H-2B visa, and accompanying or following to join aliens (such as dependent family members);
- J visa, if seeking admission to participate in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and accompanying or following to join aliens (such as dependent family members); and
- L visa (L-1A and L-1B), and accompanying or following to join aliens (such as dependent family members).
The suspension will only apply to individuals who:
- are outside the United States as of the effective date of the proclamation; AND
- do not have a valid nonimmigrant visa as of the effective date of the proclamation; AND
- do not have a valid and official travel document other than a visa as of the effective date of the proclamation that permits him/her to seek admission to the United States.
The suspension and limitation on entry will not apply to:
- Individuals who are currently in the United States;
- Individuals who are outside the United States and hold a valid nonimmigrant visa or travel document as of the effective date of the proclamation;
- US lawful permanent residents (i.e., Green Card holders);
- Alien spouses and children of US citizens;
- Individuals seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- Individuals whose entry would be in the national interest.
Details on the process for seeking an exemption based on work in the food supply chain or in the national interest (including but not limited to providing medical care to COVID-19 patients or for COVID-19 medical researchers) are not available. Standards for seeking an exemption are to be published by the relevant government agencies.
In view of these exceptions, the following can be concluded:
- A person who is currently in the United States in one of these statuses or dependent statuses can remain in the United States and can continue to work if otherwise authorized to work; may extend a period of stay; and may transfer employment to another employer in accordance with the person’s nonimmigrant status.
- A person who is currently in the United States may seek to change status through USCIS to one of these statuses and will be unaffected by the proclamation (this includes persons whose H-1B petitions are subject to the annual cap and will be changing status to H-1B on October 1).
- A person who is outside the United States now but holds a valid H-1B, H-2B, J-1, or L-1 visa would be able to return to the United States to take up or resume employment.
- A person who holds a valid H-1B, H-2B, J-1, or L-1 visa as of June 24 should be able to renew that visa at a US consulate overseas.
- Canadian citizens, who do not need to obtain US visas to enter in one of these statuses, are arguably not subject to the restrictions. They may continue to apply for admission at ports of entry after the effective date of the proclamation and be issued an “official travel document other than a visa” in the form of an I-94 admission record. It is unclear if an I-797 approval notice qualifies as such an official travel document. If it does, Canadian nationals may be able to use such a notice to be admitted in one of these statuses.
- Certain visa classifications are not impacted at all, including O visas for foreign nationals with extraordinary ability and treaty-based visa programs (e.g., TN, H-1B1, E) although these classifications may be impacted by consular closures and other COVID-19-related travel restrictions.
- The proclamation does not impact individuals who are in the adjustment of status (green card) process in the United States.
Caveat: These conclusions are based on a careful analysis of the language in the presidential proclamation. It is possible that US government agencies, including the State Department and US Customs and Border Protection (CBP), might interpret and apply the proclamation in a manner that is inconsistent with the precise language in the proclamation. It is also possible that the agencies may issue clarifications in the coming days that conflict with these conclusions.
These suspensions and limitations on entry will take effect on Wednesday, June 24, at 12:01 am (ET). The ban is currently slated to remain in effect until December 31, 2020, with the possibility of a potential extension, if necessary.
Return to Work Resources
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
Coronavirus COVID-19 Task Force
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Shannon A. Donnelly
Eric S. Bord
Laura C. Garvin
For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.