This updates our alert of 22 April 2020, which discussed President Trump’s 60-day suspension on the entry of individuals applying for immigrant visas (‘green cards’) outside of the United States. Once again citing the high U.S. unemployment rate and the need to protect Americans’ jobs, on 22 June 2020, President Trump announced an extension of that entry ban for would-be immigrants until 31 December 2020 and expanded it to foreign nationals under several temporary non-immigrant work visa categories.

When does the newly expanded travel ban become effective?

00:01 EST on Wednesday 24 June 2020.

When does it end?

31 December 2020, but may be continued as necessary.

Who is affected?

• those applying for immigrant visas (‘green cards’) outside of the US;
• H-1B visas for professionals and their family members in need of H-4 status;
• H-2B visas for temporary, non-agricultural workers (e.g. construction and hospitality workers) and their family members in need of H-4 status;
• L-1A and L-1B visas for intracompany transfers and their family members in need of L-2 status; and
• certain J-1 exchange visitors (specifically Interns, Trainees, Camp Counselors, Au Pairs and Summer Work/Travel visitors) and their family members in need of J-2 status.

Does the Proclamation ban all H-1B, H-2B, L-1, and J-1 workers and their families?

No. The US will only stop the entry of the foreign nationals described above who:

• are outside the U.S. as of 00:01 EST on 24 June 2020;
• do not already have a valid non-immigrant H-1B, H-2B, H-4, L-1, L-2, J-1, or J-2 visa in their passports; and
• do 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 United States and seek entry or admission.

The President’s Proclamation does not stop the entry of those who already have a valid, unexpired H-1B, H-2B, L-1, or J-1 visa (or the corollary dependent family visas H-4, L-2, and J-2) in their passports. In addition, the Proclamation does not invalidate the status of H-1B, H-2B, L-1, or J-1 foreign nationals and their families who are currently inside the US. These individuals may still apply to US Citizenship and Immigration Services (‘USCIS’), to change or extend their status without having to leave the country.

Are there any exemptions?

Yes. The travel ban exempts:

• US Lawful Permanent Residents (i.e. “green card” holders);
• the spouse or children of a U.S. citizen;
• any alien who would provide temporary labor or services essential to the United States’ food supply chain;
• any alien whose entry would be deemed to be ‘in the national interest’;
• a foreign national child who would ‘age out’ of a visa as a result of this entry suspension, at the discretion of the Department of Homeland Security.

In addition, please note there are many temporary non-immigrant work visa categories which are not included in the President’s announcement such as J-1 visas for physicians, research scholars, and professors, O-1, E-1, E-2, E-3, P, H-1B1, and TN.

Which foreign nationals qualify for the ‘national interest’ exemption?

The Proclamation leaves it up to the Department of State, Department of Labor and the Department of Homeland Security to establish standards to define categories of foreign nationals who are deemed to be in the ‘national interest’, but it specifically includes foreign nationals who are:

• critical to the defence, law enforcement, diplomacy, or national security of the United States;
• involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalised;
• involved with the provision of COVID-19 medical research at US facilities; or
• necessary to facilitate the immediate and continued economic recovery of the United States.

Who evaluates a foreign national’s eligibility for one of the exemptions?

US consulates and embassies overseas will be responsible for adjudicating a foreign national’s eligibility for one of the exemptions at the time of an H-1B, H-2B, L-1, or J-1 visa interview. Specifically, the adjudicating consular officer has discretion in this matter. The burden will be on the visa applicant to establish his or her eligibility for one of the exemptions.

What evidence must be submitted to establish a would-be H-1B, H-2B, L-1, or J-1 visa applicant’s eligibility for an exemption?

The Proclamation is silent on this point but directs the State Department to issue implementing procedures and adjudication standards to guide US consular posts and embassies abroad in making eligibility assessments. In addition, the President directs the Department of Homeland Security to issue implementing procedures to guide U.S. Customs and Border Protection agents on properly admitting foreign nationals to the U.S. under this Proclamation. Therefore, we believe additional clarification and guidance is forthcoming.

Does the Proclamation limit entry of Canadian citizens under H-1B, H-2B, L-1, or J-1 non-immigrant status?

The Proclamation does not specifically address this question. Arguably, it does not apply to Canadians who are ‘visa exempt’ and are not required to apply for a visa at a US consular post before entering the US. However, we recommend employers and Canadian workers await further clarification before traveling out of the US and seeking re-entry under one of these categories.

Analysis and employers’ bottom line

The 22 June  Presidential Proclamation signals the Trump Administration’s continued focus on restricting US. immigration. The Proclamation specifically targets H-1B, H-2B, L-1, and some J-1 visa categories, which are four commonly used visas by US companies. The order temporarily restricts only the entry of foreign nationals who are outside the US on 24 June 2020 without a valid H-1B, H-2B, L-1, or J-1 visa or other re-entry document for the US, with certain exemptions. It does not impact the legal status of H-1B, H-2B, L-1, and J-1 workers inside the US, but restricts their ability to travel internationally after the visa inside their passport expires. Therefore, US companies can continue employing H-1B, H-2B, L-1, and J-1 workers who are already in the US. For the most part, employers can manage extensions and changes of status for these workers from within the US by filing petitions through USCIS which would avoid the need for these workers to leave the US for consular processing of visas.

The 22 June Presidential Proclamation will adversely impact employers who rely on obtaining foreign talent through the annual H-1B cap sponsorship process. Specifically, employers who are sponsoring H-1B petitions under the Fiscal Year 2021 cap for foreign professionals who are outside the US, or those who are inside the US now under a different non-immigrant status who cannot benefit from a change of status and would be required to apply for a visa abroad, will not be able to enter the US to start work before the start of 2021. This could result in work delays and may cause some companies to reconsider sponsorship, in which case immigration counsel should be consulted. In addition, although the Proclamation does not specifically clarify it, arguably it does not apply to Canadians who are ‘visa exempt’. However, we recommend employers and Canadian workers in the U.S. await further clarification before traveling out of the US and seeking re-entry under one of these categories.

It is important to note that although the President’s announcement does not include many other temporary non-immigrant visa programs, such as J-1 visas for physicians, research scholars, and professors, O-1, E-1, E-2, E-3, P, H-1B1, and TN, these workers must also carefully consider the necessity of international travel to avoid getting stuck outside of the US due to a variety of other actions implemented since the COVID-19 national emergency was issued, including an ongoing entry ban on individuals arriving from 30+ countries and the suspension of all but ‘mission critical’ visa services at US consular posts until further notice.

Finally, employers should expect to see additional efforts to curtail immigration. For example, in the 22 June Proclamation, the President directs the relevant federal agencies, including the Department of Labor and Department of Homeland Security, to issue new regulations to further restrict access to the H-1B visa program such as by increasing threshold skill and wage levels. Unlike the Presidential Proclamation, which has virtually immediate effect, the promulgation of new agency regulations will take time and will likely have to go through a public notice and comment period, so any changes to H-1B eligibility requirements will not be immediate. In addition, the President directs relevant federal agencies to periodically review the Proclamation, initially in 30 days and every 60 days thereafter, to determine if any modifications are required.

Considering the 22 June Proclamation and the interplay of a myriad other actions taken in pursuit of public health and economic recovery, US employers may be best served to pause or limit the international travel of their foreign workers until the various immigration restrictions/bans are lifted. In all cases, it is critical to stay apprised of developments and discuss the soundness of any international travel with immigration counsel to understand any risks.