By Robert P. Gaffney, Esq. and Kristina M. Seil, Esq.
On June 22, 2020, the White House issued a Presidential Proclamation[i] (titled “Presidential Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”), with the goal of further restricting immigration to the United States.
The Proclamation extends the validity of a prior Presidential Proclamation of April 22, 2020[ii], suspending the entry into the United States of certain classes of family-sponsored and employment-based immigrants to the United States (Proclamation 10014, the “Immigrant Visa Ban”).
The new June 22 proclamation (“Nonimmigrant Visa Ban”) suspends the entry into the U.S. of certain persons in specific nonimmigrant work visa classifications and their dependents. The effective date of the proclamation is June 24, 2020, and the proclamation will remain in place until December 31, 2020, but may be continued after expiration.
1) Which visa types are restricted?
The June 22 Nonimmigrant Visa Ban temporarily prohibits entry to the U.S. by the following classifications of nonimmigrants:
- H-1B and H-2B nonimmigrants and their H-4 dependents;
- L-1 nonimmigrants and their L-2 dependents;
- J-1 nonimmigrants (and their J-2 dependents) who are seeking to enter the U.S. to participate in the following programs:
- Camp Counselor
- Au Pair, or
- Summer work travel program
2) Does this apply to all individuals seeking entry in H-1B, H-2B, L or J status?
The new Nonimmigrant Visa Ban is not universal, and will NOT affect all individuals seeking entry in H-1B, H-2B, L or J status, due to several exceptions stated in the proclamation.
The June 22 proclamation confirms that the suspension on nonimmigrant entries does not apply to a person seeking entry to the U.S. in one of the included nonimmigrant classifications if he or she:
- Was inside the United States on June 24, 2020, the effective date of the proclamation;
- Has a nonimmigrant visa in one of the visa classification that is subject to the ban that was valid on June 24, 2020; or
- Has 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.
If an individual meets any of the criteria above, the suspension should not apply.
Also exempt from the Nonimmigrant Visa Ban are:
- Lawful permanent residents of the United States;
- The spouse or child of a United States citizen;
- Any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- Any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, including persons whose entry would further the economic recovery of the United States
Individuals seeking new H-1B, H-2B, L or J visas on or after June 24, 2020 should inquire with competent immigration counsel whether they may fit within any of the above exceptions.
3) Which Nonimmigrant visa classes should NOT be affected by the June 22 Proclamation?
The following visa types (and dependents) should NOT be affected by the June 22 Proclamation:
- H-1B1 visas for Chileans and Singaporeans
- E-1, E-2, and E-3 visas
- F-1 visas
- O and P visas
- H-2A visas
- H-3 visas
- TN visas
- J-1 visas for the following programs:
- College and University Student
- Government Visitor
- International Visitor
- Research Scholar
- Secondary School Student
- Short-Term Scholar
However, due to consular closure caused by COVID-19, it is currently difficult to obtain any new visas, and individuals in the United States should discuss extension or change of status through USCIS with competent immigration counsel.
4) Are there any more exceptions to the Nonimmigrant Visa Ban?
Canadian citizens in possession of a valid Canadian passport do not require a nonimmigrant visa to enter into the U.S. in any of the nonimmigrant visa classifications covered by the nonimmigrant entry ban. In the immigration context, a valid foreign passport may properly be viewed as a “travel document.” Therefore, Canadian applicants for entry who might otherwise be within the scope of the ban would appear to be exempt from the prohibition on entry based upon possession of a “travel document” – i.e. a Canadian passport – that is valid on June 24, 2020, the effective date of the proclamation.
5) The bottom line: sound legal advice is critical.
The amended proclamation is obviously a document marked by a material degree of fluidity. It is too early to tell how specific circumstances will play out in given cases, especially given the discretion of U.S. consular officers across the globe in making individual eligibility determinations. There are likely to be many questions and concerns – as well as opportunities – relevant to the proclamation’s provisions. We will continue to closely monitor developments in the field of U.S. immigration and related impacts on employers and individuals.
The legal team at Law Offices of Robert P. Gaffney has a demonstrated record of successful client advocacy in immigrations matters and is available to provide results-driven representation during these challenging times. Please call 415-503-9653 to arrange a consultation with one of our lawyers.
June 30, 2020 Update: Following an amendment to the Presidential Proclamation on June 29, 2020 (“Amendment to Proclamation”), this article was updated to remove discussion of a possible exception to the Nonimmigrant Visa Ban for those who held any valid US nonimmigrant visa on June 24, 2020. The Amendment to Proclamation clarifies that no exception will be made for holders of a valid visa in a visa classification not covered by the temporary ban.
This information is not intended to constitute legal advice, nor does it create an attorney-client relationship between Law Offices of Robert P. Gaffney and anyone else. This information is not intended to be used as a substitute for specific legal advice based on an individual or organization’s particular facts and circumstances, and it should not be considered as such.