Trump Administration Expands Immigration Restrictions With Another Presidential Proclamation (UPDATED)

Following weeks of rumors about the Trump Administration expanding its immigration ban to include nonimmigrant visas, the White House today, issued another Presidential Proclamation “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” 

This proclamation is basically a continuation and expansion of the April 22 “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

The new restrictions take effect on June 24, 2020 and will expire on December 31, 2020.

While it has sent the immigrant community into another round of panic, the June 22nd proclamation is somewhat limited.

WHAT VISA CATEGORIES ARE IMPACTED?

The presidential proclamation will suspend the entry into the United States of any alien (i.e. foreign national) seeking entry pursuant to any of the following nonimmigrant visas:

• an H-1B or H-2B visa, and any dependent spouse and/or minor children under 21 years of age;
• a J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any dependent spouse and/or minor children under 21 years of age; and
• an L visa, and any dependent spouse and/or minor children under 21 years of age.

DOES THE PROCLAMATION APPLY TO EVERYONE IN H-1B, H-2B OR J-1 CATEGORIES?

The suspension and limitation on entry only applies only to any foreign national who:

• is outside the United States on the effective date of this proclamation;
• AMENDED JUNE 29, 2020

  does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and
• does 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.

WHO IS EXEMPT FROM THE PROCLAMATION?

The suspension and limitation on entry pursuant to this proclamation does not apply to:

• any lawful permanent resident (i.e. green card holder) of the United States;
• any foreign national who is the spouse or child of a United States citizen;
• any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
• any foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees
  • Some of the industries that are likely to be exempted include those that 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 United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.

WHAT DOES IT ALL MEAN?

• The new restrictions only impact new H-1B, H-2B, J-1, and L-1 visa applicants (and their dependents) who are outside of the United States and who do not already have a valid nonimmigrant visa.
  • Unfortunately, if you have an approved H-1B, H-2B, J-1, or L-1 I-797 Approval Notice, but you do not have a valid visa issued by a U.S. embassy or consulate, you will not be able to apply for it and enter the United States unless you qualify for one of the exemptions listed above.
    • In theory, a foreign national could still apply for an H-1B or L-1 and once approved by USCIS, request an exemption when applying for the visa at a US embassy or consulate, based on one of the exempted activities or industries listed above.
  • NB. The restrictions on the J-1 are limited to the intern, trainee, teacher, camp counselor, au pair, and summer work travel categories. The following J-1 categories are not impacted by the proclamation – college and university students, professors, research scholars, short-term scholars, specialists, international visitors, government visitors, alien physicians, secondary school students, and teachers.
• If you are outside of the United States with another type of nonimmigrant visa (e.g. B-1/B-2, E-1, E-2, E-3, F-1, F-2, H-1B1 Singapore/Chile (and their H-4 dependents), I, M, O-1, O-2, O-3, P-1, P-2, P-3,P-4, Q, R-1, R-2, TN, TD), this presidential proclamation does not impact you.
  • If you have not applied for your visa yet, you can still apply although you may have to wait for US embassies and consulates to reopen once COVID-19 restrictions are lifted.
  • Even if you are not impacted by the presidential proclamation, you may still be subject to existing travel restrictions into the United States.

• UPDATED JUNE 24, 2020 | Canadian Visa Holders

  U.S. Customs and Border Protection confirmed that Canadians entering as H, L, or J nonimmigrants are exempt from the June 22nd presidential proclamation. As such, Canadians with valid H-1B, L-1 or J-1 visas may enter the United States without any restrictions. Canadians with H and L visas should have their I-797 Approval Notices. J-1 and J-2 visa holders should have their DS-2019s.

• If you are already here in the United States in valid nonimmigrant status (e.g. B-1, B-2, E-1, E-2, E-3, F-1 (including OPT/STEM OPT), F-2, H-1B, H-1B1, H-3, H-4, I, J-1, J-2, L-1, L-2, M-1, O-1, O-2, O-3, P-1, P-2, P-3, P-4, Q, R-1, R-2, TN, TD), this presidential proclamation does not impact you.
  • If you have applied for a change-of-status to another visa category, USCIS can still approve your application.
  • If you have applied for a change-of-employer/transfer, USCIS can still approve your application.
• If you are already here in the United States in valid nonimmigrant status (e.g. E-1, E-2, E-3, F-1 (including OPT/STEM OPT), F-2, H-1B, H-1B1, H-3, H-4, I, J-1, J-2, L-1, L-2, M-1, O-1, O-2, O-3, P-1, P-2, P-3, P-4, Q, R-1, R-2) and you travel abroad between June 24, 2020 and December 31, 2020, you can return as long as you have a valid nonimmigrant visa issued in your passport. Keep in mind that you may still be subject to existing travel restrictions into the United States.
  • If you do not have a valid nonimmigrant visa and have to apply at a US embassy or consulate abroad, you may want to think twice about whether you need to travel internationally.
  • NB. Canadians are visa exempt and do not need a valid visa issued in their passport by a US embassy or consulate. Canadians only need the I-797 Approval Notice; DS-2019 if a J-1; or I-20 if an F-1 or M-1; or an I-94 if on a TN.

HAVE U.S. EMBASSIES AND CONSULATES RE-OPENED TO ISSUE VISAS?

US embassies and consulates around the world had previously suspended all routine visa services due to the COVID 19 pandemic. It appears that some US consular posts started to allow applicants to make nonimmigrant visa appointments for May, June and July, but seem to be cancelling them as the date approaches. In some situations, consular posts have granted emergency appointments to applicants that meet the criteria for an “emergency.”

Even if US consular posts re-open to issue nonimmigrant visas, the United States continues to ban travel for foreign nationals from China, Brazil, Iran, the United Kingdom, Ireland, Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. Therefore, travel from these countries into the United States is currently prohibited if you have been present in any of them for the past 14 days. 

IS THE ORIGINAL “BAN” ON IMMIGRANT VISAS (I.E. GREEN CARDS) STILL IN EFFECT?

Yes, the original proclamation issued on April 22, 2020 is still in effect. It was originally supposed to end after 60 days, but today’s proclamation extends it to December 31, 2020.