On June 20, 2020, the president issued a proclamation that suspends the
entry of foreign nationals on certain employment-based nonimmigrant visas into the United States effective immediately and that will remain in effect through 12/31/2020.
The Proclamation also extends the April 22, 2020 proclamation suspending issuance of certain immigrant visas by U.S. Consulates abroad. Please refer to our immigration alert from 4/23/2020.
Who is impacted
Anyone
outside of the U.S. without a valid visa stamp in his/her passport in one of the following categories:
- H-1B and H-4 dependents
- H-2B and H-4 dependents
- J interns, trainees, teachers, camp counselors, au pairs, or summer work travel program and J-2 dependents
- L-1A, L-1B and L-2 dependents.
The
proclamation pertains to visa issuance at U.S. consulates abroad so anyone in the U.S. in one of these status who does not have a valid visa stamp in his/her passport will not be able to depart the U.S. as it will not be possible to obtain a new visa in order to return to the U.S.
What is not impacted
In-country extensions, amended petitions and petitions for a change of employer are not impacted by the proclamation. That is, where the beneficiary of the petition is already in the U.S.
While it was previously rumored that H-4 EADs and F-1 OPT would also be impacted by the proclamation, they are not part of the suspension.
All other nonimmigrant categories other than the 4 listed above are not impacted by the proclamation.
Exemptions
The Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom a "national interest" exemption would be available, including any individuals who:
- are critical to the defense, law enforcement, diplomacy, or national security of the United States;
- are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
- are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
- are necessary to facilitate the immediate and continued economic recovery of the United States; or
- are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014 issued on April 22, 2020.
At this time, there is no additional guidance on how to apply for an exemption based on one of the above criteria; however, a consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.
Possibility of Additional Changes in Scope/Duration
Within 30 days of the Proclamation's effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.
Additional Actions to be Taken
- Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 or EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.
- Undertake investigations of Labor Condition Application (LCA) violations.
- Consider issuing regulations or other actions concerning the allocation of visas and ensuring that the presence of
H-1B workers in the United States does not negatively affect U.S. workers. This would include prioritizing the highest paid H-1B workers in the numerical cap.
- Ensure that an individual will not be able to apply for a visa or admission to the United States until they have completed biometrics, including photographs, signatures, and fingerprints.
So, it is very possible that the scope/duration of the proclamation will be expanded in the coming months.
This immigration alert is being sent only to company representatives. Please share with your foreign national employees.
