President Trump issued a proclamation on Monday, June 22, 2020, extending the Presidential Proclamation of April 22, 2020 suspending entry of certain foreign nationals who hold immigrant visas issued on or after April 24, 2020, and suspending certain categories of nonimmigrants from entering the U.S. The order takes effect at 12:01 a.m. EST (Eastern Standard Time) on June 24, 2020, and suspends the issuance of visas to foreign nationals seeking entry into the U.S. under the following categories:

  • H-1B category (specialty occupation workers) and any foreign national accompanying or following to join them;
  • H-2B category (seasonal workers) and any foreign national accompanying or following to join them;
  • J category (students, researchers) to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L category (intracompany transferees), and any foreign national accompanying or following to join them.

The proclamation will remain in effect through December 31, 2020. According to the text of the proclamation1, its scope applies 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 U.S. and seek entry or admission.

The proclamation does not apply to:

  • Lawful permanent residents;
  • Spouse or child of a U.S. citizen;
  • Any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  • Any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Exemptions for “national interest” will be determined by the Secretaries of State, Labor, and Homeland Security based upon whether foreign nationals seeking entry into the U.S.:

  • 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 U.S. facilities to help the U.S. combat COVID-19;
  • Are necessary to facilitate the immediate and continued economic recovery of the U.S.; or
  • Are children who would age out of eligibility for a visa because of this proclamation or the proclamation issued on April 22, 2020.

Both secretaries are to recommend modifications of this proclamation to the President thirty days after June 24, 2020, and every sixty days thereafter.

The proclamation does not impact foreign nationals outside of the U.S. pursuing F-1, TN, H-1B1, E-2, E-1, E-3, O-1 employment-based nonimmigrant visa categories. In addition, foreign nationals inside the U.S. in the H-1B, H-2B, L-1, and J-1 categories are not impacted. With respect to foreign nationals outside the U.S. who are in possession of a valid H-1B, H-2B, L-1, and J-1 visa, it is unknown whether these foreign nationals would be able to use these visas to enter the U.S. However, a reading of the proclamation indicates these foreign nationals may be able to use these visas to enter the U.S. Foreign nationals who are outside the U.S. and in possession of an H-1B, H-2B, L-1, and J-1 may want to contact the U.S. Customers and Border Protection (CBP) office at the port of entry the foreign national wishes to enter, or the U.S. Department of State (DOS) embassy or consulate that issued the visa, for clarification. It is possible that various government agencies may issue additional guidance in the future on this issue.

Many businesses such as Apple, Facebook, and Google, and organizations, including the U.S. Chamber of Commerce, have opposed the proclamation, stating that it will hurt American businesses by blocking their efforts to attract and retain skilled talent at a time and thus undermining the nation's economic recovery. Senior administration officials, however, contend that the suspension of new nonimmigrant visas is necessary to put unemployed Americans back to work, and that the president aims to create a merits-based system that would distribute H-1B visas based on which applicants receive the highest wage offers.2 It is anticipated that the Presidential Proclamation may be challenged. Our office will continue to monitor the impact of President's Trump recent proclamation on foreign nationals and the business community, and provide updates as information becomes available.

Footnotes

1 Office of the President. “Proclamation Suspending Entry of Alien Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” June 22, 2020. https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/

2 Brett Samuels. “Trump to Sign Executive Order Suspending Certain Work Visas Through 2020.” The Hill: June 22, 2020. https://thehill.com/homenews/administration/503914-trump-to-sign-executive-order-suspending-certain-work-visas-through

Originally Published by Fakhoury, June 2020

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