Presidential Proclamation Suspending Entry on Nonimmigrant Visas Update
On June 22, 2020 a Presidential Proclamation was issued which suspended the entry of certain nonimmigrants to the U.S. and extended the suspension of new immigrant visas issued abroad. Specifically, the Proclamation suspended the entry of individuals outside the U.S. without a valid visa or travel document in the following nonimmigrant visa categories:
– H-1B specialty occupation workers and H-4 family members;
– H-2B seasonal non-agricultural workers and H-4 family members;
– J-1 exchange visitors in the following sub-categories: intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and J-2 family members;
– L-1 intracompany transferees (both L-1A executive/managerial and L-1B specialized knowledge) and L-2 family members.
Please see our prior immigration update for additional details.
As noted in our June 22nd immigration update, additional guidance was needed to understand how the Proclamation would be implemented. Below is a summary of the guidance we have received to date:
Nonimmigrant Entry Ban does not Apply to Canadians
U.S. Customs and Border Protection (CBP) has confirmed that visa-exempt Canadians are not subject to the suspension of admission to the U.S. Canadians in H-1B, H-4, H-2B, J-1, J-2, L-1 and L-2 are not required to have a visa stamp in their passports for entry to the US and thus are able to enter the country by presenting a USCIS approval notice or the required documents at the port of entry. CBP has confirmed that Canadians are not affected by the Presidential Proclamation and may continue to enter the U.S. in these classifications.
Nonimmigrant Entry Ban also does not Apply to H-1B1s
The H-1B1 visa category is for citizens of Singapore and Chile who work in specialty occupations. The US Consulate in Singapore has advised that the Presidential Proclamation does not apply to the H-1B1 category.
What is a “Valid Nonimmigrant Visa”?
President Trump issued an Amendment to the June 22 Presidential Proclamation on June 29, 2020. The Amendment clarified what it means to have a “Valid Nonimmigrant Visa”. A person is exempt from the nonimmigrant ban only if she or he holds a valid unexpired visa in one of the classifications listed in the travel ban (H-1B, H-2B, H-4, J-1, J-2, L-1 and L-2) and is re-entering the U.S. with the same visa that was valid on June 24, 2020.
Prior Entry Not Required
The Presidential Proclamation suspends the entry of nonimmigrants totheUS in certain H, L and J categories unless they have a valid visa on June 24, 2020. U.S. Citizenship and Immigration Services (USCIS) has confirmed that prior entry on that valid visa is not required. Individuals with H, L, and J visas issued prior to and valid on June 24th will be allowed to enter the U.S. even if it is the first entry on that visa.
Individuals Inside the US on June 24, 2020 without a Valid Visa
Individuals inside the US on June 24, 2020 in the above mentioned H, L, and J statuses are able to remain in the US through their period of admission even if they are not in possession of a valid visa. Initially, it was unclear whether such individuals would also be able to depart the US, apply for a new visa at the U.S. consulate abroad and re-enter. Department of State has advised that these H, L, and J individuals who depart the US would be subject to the nonimmigrant entry ban unless they possessed a valid visa on June 24th and are re-entering the US using that same visa. This means that H-1B, H-2B, H-4, J-1, J-2, L-1 and L-2 individuals inside the US without a valid visa would be subject to the Presidential Proclamation if they depart the country.
Dependents of H-1B, H-2B, L-1 and J-1 Nonimmigrants
The Department of State announced that exceptions to the Presidential Proclamation may be given to the spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to the nonimmigrant entry ban. DOS further noted that the consulates will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currentlyexceptedor where the principal applicant is currently in the United States. This means that if the H, L or J principal is in the US but the family is abroad without valid visas, the family members would be able to apply for their derivative visa at the U.S. Consulate and enter the US. Also if the H, L or J principal is outside the US with a valid visa but the dependent family members are without visas, the family members would be allowed to apply for their derivative visas and enter the US with the principal worker.
There are still several unanswered questions regarding the implementation of this Presidential Proclamation. We will continue to update you as new information becomes available.
This update was prepared by Diana Vellos Coker, Partner, Larrabee Albi Coker LLP.
Legal Disclaimer: This e-blast is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter. Immigration laws and policies change frequently, often without notice. It is therefore important to seek direct legal counsel based upon individual circumstances.