On June 22, 2020, President Trump issued a Presidential Proclamation to restrict entry to the US of foreign nationals in certain visa categories for a limited time, extending and expanding the previous Proclamation of April 22, 2020.
This detrimentally impacts employers in the US, certain foreign national employees and their families, and the American workers whose jobs are created or otherwise rely on these employees.
Here are the key points of the Proclamation, which is entitled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.”
The Good
The Proclamation does not apply to anyone in the US.
E-1, E-2, E-3, H-1B1, O-1, P-1, and TN visa employees anywhere in the world are not included in the Proclamation.
Employees already in the US are not included in the Proclamation, which restricts entry to the country. The Proclamation does not apply to the employment-based immigrant visa categories (EB1 extraordinary ability/outstanding professors and researchers/multinational managers and executives, EB2 professionals with advanced degree/exceptional ability, EB3 professionals/skilled workers/other workers, EB4 religious workers and EB5 immigrant investors) who are already in the US, but it does reference potential future restrictions on EB2 and EB3.
The Proclamation does not appear to restrict the admission of personnel who already have been issued visas. By its own language, three conditions must be met and that gives the impression that employees already issued L-1 and other visas are exempted from the restrictions. It is not yet clear if this is intentional, an error, or may be changed in the future. The relevant wording is:
The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:
- is outside the United States on the effective date of this proclamation;
- does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
- does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
Emphasis added.
There is an exemption for any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
There is another exemption for any alien seeking to enter the US to provide temporary labor or services essential to the US food supply chain.
Also exempted are lawful permanent resident and the spouse or child of a US citizen.
The Proclamation instructs the government to create further exemptions that will include foreign nationals that:
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 United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.
The Proclamation is effective immediately and shall expire on December 31, 2020 (but may be continued).
The Bad
L-1, H-1B, H-2B and J-1, as well as their accompanying L-2, H-4 and J-2 family members, are included in the Proclamation if outside the US and does not have an unexpired visa in their passport. The Proclamation restricts US consular posts from issuing these visas unless one of the exceptions mentioned above is applied by the consular officer.
Because Canadian citizens are not required to apply at US consular posts for most nonimmigrant visas, the Proclamation does not appear to apply to them, but there is no express exception for Canadian citizens in the Proclamation.
The 60 day restriction on immigrant visa processing at US consular posts from the April 22 Proclamation is continued by this Proclamation to December 31, 2020, as well.
Because US consular posts are generally closed to nonimmigrant and immigrant visa processing due to the pandemic, the Proclamations main impact is to put a date on the restrictions and create more exceptions for cases where the consulates will still issue visas.
The Ugly
Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.
The Proclamation instructs the DOL, as soon as practicable, to consider promulgating regulations or take other appropriate action to ensure that “the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1)).”
The Proclamation further instructs the DHS, as soon as practicable, to consider promulgating regulations or take other appropriate action “regarding the efficient allocation of visas pursuant to section 214(g)(3) of the INA (8 U.S.C. 1184(g)(3)) and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers.”
Additional Information
For the full text of the Proclamation, see https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
