US President Donald Trump has extended the entry ban on H-1B, H-2B, L-1, and specific J-1 statuses as well as certain immigrant entries through March 31, 2021. The original proclamations were set to expire on December 31, 2020, and were extended on the very last day.
As previously indicated in a prior alert, the admission suspension applies to certain visa categories under specific conditions, as further detailed below:
The suspension will only apply to individuals who
Exemptions will continue to apply to certain individuals who
Individuals whose visas are based on employment with a member of the plaintiff class in the lawsuit filed by, among others, the National Association of Manufacturers (NAM) and the US Chamber of Commerce that challenged the legality of the visa suspension are also exempt from the suspension. However, as a practical matter, their ability to secure a visa is limited in most instances due to consular closures and limited appointment availability.
The proclamation on immigrant entry was also extended through March 31, 2021, which essentially prevents US consular posts abroad from issuing employment-based, family-based, or Diversity Lottery immigrant visas while the proclamation remains in effect. There are limited exceptions for certain applicants, such as US lawful permanent residents; spouses of US citizens; minor children under age 21 of US citizens and prospective adoptees in the IR-4 or IH-4 visa classifications; foreign nationals seeking to enter on an immigrant visa as a healthcare professional, as well as their spouse and unmarried children under age 21; applicants for EB-5 immigrant visas; and those whose entry would be in the national interest.
Additionally, in accordance with a recent federal court order and preliminary injunction, the proclamation does not apply to organizations (and their foreign national employees) who are members of the National Association of Manufacturers, the US Chamber of Commerce, the National Retail Federation, Technet, and Intrax, Inc. The preliminary injunction is currently under appeal by the federal government.
With the continued suspension of routine visa services at consular posts worldwide and the extension of the proclamation, employers should anticipate continued delays in the return or relocation of employees to the United States.
Note that the proclamation discussed above is distinct from the coronavirus (COVID-19) related country or region-specific travel bans, which restrict entry of individuals who have been in the following countries during the preceding 14 days prior to traveling to the United States: China, Iran, European Schengen Area, United Kingdom, Ireland, and Brazil. The country-specific travel ban remains effective unless rescinded or superseded by the issuance of a subsequent proclamation. Individuals subject to the country-specific travel ban may apply for national interest exception waivers to enter the United States.
In a recent related development, airlines in the United States have appealed to the administration to implement testing requirements for entry to the United States, rather than bans from specific countries. Implementing testing requirements prior to travel may be a likely path taken by the new administration in the near future.
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.
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Our team has experience in obtaining national interest exceptions and can assist with an assessment for each particular situation. 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
For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.