In immigration developments the week of July 13, an executive order makes persons born in Hong Kong chargeable to Mainland China for immigrant visa purposes; the policy preventing F-1 and M-1 international students from attending college fully online was abandoned; and the US Department of State clarified that there are national interest exceptions to the presidential proclamations on immigration, including for humanitarian travel, public health response, and national security.
The White House issued an executive order on Hong Kong normalization on July 14. The order seeks to deprive Hong Kong of a number of privileges that set it apart from the People’s Republic of China (PRC), including preferential treatment under US law for persons born in Hong Kong. With respect to immigration, the order suspends the applicability of Section 201(a) of the United States–Hong Kong Policy Act of 1992, which left intact all US laws affecting Hong Kong before the region was ceded to the PRC in 1997, to a number of immigration statutes, including Section 103 of the Immigration Act, which treated persons born in Hong Kong separately from those born in the PRC for purposes of immigrant chargeability and per-country immigrant ceilings.
The effect of this change will be to make persons born in Hong Kong who are seeking to obtain US permanent resident status chargeable to the “China-Mainland Born” chargeability area, rather than to the “All Chargeability Areas Except Those Listed” area (commonly referred to as the “Rest of the World” area), to which persons born in Hong Kong were previously charged.
The practical impact will be that such persons will now face much longer waiting periods before they can become permanent residents, since the cutoff dates applicable to the Mainland China area of chargeability are much earlier than those applied to the Rest of the World area. For this month, the EB-2 Final Action cutoff date for persons chargeable to the Mainland China area was November 8, 2015, while there was no EB-2 Final Action cutoff date for persons chargeable to the Rest of the World area (i.e., the category is current, with no waiting period). Similarly, the EB-3 Final Action cutoff date for persons chargeable to the Mainland China area was June 22, 2016, while the EB-3 Final Action cutoff date for persons chargeable to the Rest of the World area was April 15, 2018.
The executive order would also prevent persons born in Hong Kong from participating in the Diversity Visa program, which grants up to 50,000 immigrant visas annually through a random selection process.
The executive order is valid indefinitely, and the US immigration agencies have been given 15 days from the date of the order to “commence all appropriate actions” to implement it.
As we reported in an alert on July 7, the Student and Exchange Visitor Program (SEVP) maintained by US Immigration and Customs Enforcement (ICE) announced that nonimmigrant F-1 and M-1 students who will attend schools operating entirely online were prohibited from taking a fully online course load and remaining in the United States.
Students who were in the United States and enrolled in such programs were required to depart the country or transfer to schools with in-person instruction to remain in lawful status. If this was not done in a timely manner, students could face immigration consequences such as removal.
The announcement was met with widespread opposition, and lawsuits were filed by 17 states and numerous distinguished universities to enjoin the new policy. The judge adjudicating one of these lawsuits, Judge Allison Burroughs, announced on July 14 that ICE and the plaintiffs had reached a settlement and that the policy would not go forward.
F-1 and M-1 students will thus continue to be governed by the March 13, 2020 guidance issued by ICE and may remain in the country while attending classes exclusively online.
On July 16, the US Department of State issued an announcement on its website to clarify the exceptions available to the bar on entry to certain foreign nationals imposed by Presidential Proclamations 10014 and 10052, on which we reported in our June 1 and June 23 alerts. The announcement confirms the national interest exceptions available for humanitarian travel, public health response, and national security, and adds that “other limited exceptions” may be provided to the following:
The Department of State noted that it will continue to issue H, L, and J visas to “otherwise qualified derivative applicants” who are otherwise currently excepted or where the principal applicant is currently in the United States. The announcement also expressly stated that no visas that are currently valid will be revoked pursuant to the presidential proclamations.
The announcement also stated that applicants for immigrant visas covered by the proclamations, including Diversity Visa 2020 applicants, who have not been issued immigrant visas as of April 23 are subject to the proclamations' restrictions and may not enter the United States unless they are eligible for an exception.
The State Department announcement makes it clear, contrary to prior guidance, that consulates will continue to issue H-4, L-2, and J-2 visas to dependents of H-1B, L-1, and J-1 nonimmigrants, even if these dependents were subject to the entry bar because they were outside the United States on June 24 and did not have a valid visa on this date, provided that the principal is not subject to the bar because he or she was in the United States on June 24 or held a valid visa on that date. The exception is also available in any situation where the principal is “currently” in the United States.
The clarification is welcome, since it prevents the separation of family members on the arbitrary basis of a person’s whereabouts or lack of a visa on June 24, and allows family members who would otherwise have been stranded outside the United States to return.
Visa applicants who believe they meet a national interest exception may request a visa appointment at the closest embassy or consulate and a decision will be made at the time of interview. Dependent visa applicants who meet the grounds outlined above do not need to make a national interest exception argument and can simply show evidence of the inapplicability of the entry ban to the principal.
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.
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:
Laura C. Garvin