Presidential Proclamation Suspending Entry on Nonimmigrant Visas

Presidential Proclamation Suspending Entry on Nonimmigrant Visas

23:18 22 June in News Updates

WHEN DOES THE ORDER TAKE EFFECT?
 
The Order will become effective on Wednesday, June 24, 2020 at 12:01 Eastern Daylight Time.   
 
HOW LONG WILL THE ORDER BE IN EFFECT?
 
The Order will be in effect until December 31, 2020, and may be continued as necessary.  Within 30 days of June 24, 2020, and every 60 days thereafter while the proclamation is in effect, the Secretary of Homeland Security, Secretary of State and Secretary of Labor shall recommend any necessary modifications.
 
WHO DOES THE ORDER IMPACT?
 
            Immigrant Visas (Permanent residency/ green card process)

Today’s proclamation extends the suspension of entry to the United States of individuals on immigrant visas which was due to expire June 22, 2020.  The Order still applies only to individuals processing immigrant visas at U.S. consulates abroad, and also exempts a number of categories of immigrant visas.  Please see our prior update for additional information.

As with the prior order, today’s proclamation does not restrict the ability to file immigrant applications with USCIS, 
and will only impact entry and visa issuance of the affected immigrants.  That is, the order does not impact applications for I-485 adjustment of status with USCIS in the United States, nor any steps in the green card process such as the PERM labor certification and I-140 immigrant petition filings at this time.

 

Nonimmigrant visas (temporary visas)

 

Today’s proclamation concludes that “the entry of additional workers through the H-1B, H-2B, J and L nonimmigrant visa programs presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

 


The Proclamation suspends the entry to the United States of individuals on the following nonimmigrant visas:
– 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.

 

At this time, the proclamation has no impact on other nonimmigrant visa classifications (E-1/2, O-1, TN, etc.).

 

WHO DOES THE ORDER EXEMPT? 

The proclamation does NOT apply to:
  • Individuals inside the United States on the effective date of the Proclamation (June 24, 2020)
  • Individuals who are outside the U.S. but already have a valid nonimmigrant visa on the effective date of the Proclamation (June 24, 2020)
  • Individuals who have an official travel document other than a visa (e.g. transportation letter, advance parole document) that is valid on June 24, 2020 or permits the individual to travel to the US to seek admission
  • Lawful permanent residents (green card holders) of the U.S.
  • Spouses and children of U.S. citizens
  • Individuals seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain
  • Individuals whose entry would be in the national interest as determined by the Secretaries of State and Homeland Security, or their designees
  • This proclamation does not limit the ability for individuals to seek asylum, refugee status, withholding of removal or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
    • The Secretaries of State, Labor and Homeland Security shall establish standards to define categories of individuals deemed to be in the national interest, including individuals who are:
      • Critical to the defense, law enforcement, diplomacy, or national securityof the United States
      • Involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized
      • Involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or
      • Necessary to facilitate the immediate and continued economic recovery of the United States
    • May exempt children who may age out due to the extension of the suspension on immigrant visas

ADDITIONAL POSSIBLE MEASURES
The Order specifies that there may be more restrictions on entry to the U.S.
  • To reduce the spread of COVID-19
  • Directs the Secretaries to consider regulations or other actions to ensure those seeking EB-2 or EB-3 immigrant visas, or those in the U.S. on H-1B visas, do not “disadvantage U.S. workers”
LAC NOTES
This Proclamation contains a severability clause, presumably so that if some provisions are enjoined or deemed unlawful by a court of law, the others will remain in force.

 

There was a good deal of speculation in advance of the issuance of this proclamation.  At this time, the proclamation does not impact STEM OPT or H-4 EADs.  It is possible that these categories will be addressed in some form through regulatory action, as both have been on the federal regulatory agenda for review for some time.

 

The administration received a good deal of input in the formation of this proclamation from immigration restrictionist groups, but also received letters of concern from senators such as Lindsey Graham (R – South Carolina) and John Cornyn (R – Texas), Charles Koch, industry leaders, universities, and groups such as the U.S. Chamber of Commerce, with differing views of the impact of various types of immigration on economic recovery.  Ongoing discussion and perhaps litigation is expected. 
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We will continue to update you as additional information becomes available.

 

This update was prepared by Fausta M. Albi, 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.

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