On Monday, June 22, 2020, President Donald Trump signed a “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” The Proclamation imposes significant additional restrictions on the ability of foreign nationals to enter the United States. This latest iteration of immigration restrictions targets some of the most widely used work visas, including H-1B, H-2B, J-1, L-1, and their dependents. The Proclamation has been expected for some time and has drawn opposition from business groups such as the U.S. Chamber of Commerce. The groups worry the order will impede businesses by limiting their ability to recruit to fill certain jobs with non-U.S. citizens.

In April, the President had issued a previous Proclamation suspending the entry to the U.S. of immigrants as permanent residents during the COVID-19 outbreak. That Proclamation was limited to an initial 60-day period, which has now been extended through the end of 2020 by way of today’s order.

In addition to extending the time that immigrant visa issuance would be halted, today’s order also implements a significant expansion in the scope of the ban, to include several categories of temporary, nonimmigrant visas. Most notably, the Proclamation now restricts the ability of foreign nationals to enter the United States as nonimmigrants on certain H-1B, H-2B, H-4, L-1, L-2, and most J-1 visas through the end of the year. The Proclamation takes effect at 12:01 a.m. on June 24, 2020 and remains in effect through December 31, 2020, though it will be reviewed every 60 days during its validity to determine if any further changes are needed.

The order specifies that it only applies to individuals seeking entry on one of the nonimmigrant visas listed above, and only those who:

  • Are outside of the United States on June 24, 2020;
  • Do not have a valid nonimmigrant visa as of June 24, 2020; and
  • Do not have other valid travel documentation, such as an advance parole document.

Therefore, individuals who currently have a valid nonimmigrant visa, including an H-1B, H-2B, H-4, L-1, L-2, or J-1 visa, as of June 24, 2020, would appear, absent further guidance, to remain able to use such visas to enter the United States even while this Order is in effect for the duration of 2020. It also initially appears that Canadian citizens, who are exempt from the visa requirement, may fall outside of the scope of this ban and would still be eligible for admission to the United States in the visa categories listed above.

The text of the order explicitly recognizes several exceptions to the ban. The following groups/categories are not restricted under this latest order:

  • Lawful permanent residents of the United States
  • Spouses/children of U.S. citizens
  • Foreign nationals seeking to provide temporary labor or services essential to the U.S. food supply chain
  • Foreign nationals whose entry would be in the “national interest” of the United States as determined by the Secretary of State and/or the Secretary of Homeland Security

While no blanket exemption appears in the text of the order for healthcare workers or those involved in COVID-19 mitigation efforts, those individuals may be able to qualify for the “national interest” exemption set forth in the order. The order directs the secretaries of State, Labor, and Homeland Security to establish standards to define categories of foreign nationals who would fall within the “national interest” exemption, citing as examples individuals who may be critical to national defense or national security, individuals involved in providing medical care to COVID-19 patients, individuals engaged in medical research related to combating COVID-19, or individuals who are “necessary to facilitate the immediate and continued economic recovery of the United States.” However, no guidance has yet been issued regarding how the exemption applicable to workers essential to the U.S. food supply chain would be applied.

We emphasize again that this Proclamation does not appear to have an immediate impact on the valid immigration status of individuals currently in the United States, or on their eligibility for a change/extension of status filed from within the country for those already in H-1B or L-1 status, for example.

Thus, the immediate impact of this Proclamation will be on individuals abroad seeking to enter the United States on one of the impacted visa types, or those who are in the United States now and would have otherwise sought to travel outside of the United States within the next six months – the same group who would have already been facing restrictions due to the months-long closure of U.S. consulates and embassies worldwide during the pandemic.

However, with consulates and embassies just beginning to transition back to normal visa processing and with visa appointments just starting to become available towards the later stages of 2020, this Proclamation significantly limits the ability of foreign workers to enter the United States to engage in employment.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.

This blog post does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.