Presidential Proclamation Bars Entry of Certain Work Visa Nonimmigrants; Extends Order Suspending Entry of Certain Immigrants

Key Points

The June 22, 2020 Presidential Proclamation (“Proclamation”) extends, effective immediately, the April 22, 2020 proclamation which suspended the entry of certain immigrants into the United States. A summary of the April 22, 2020 proclamation can be found here.

The June 22 Proclamation bars entry to nonimmigrants seeking admission in the H-1B, H-2B, and L visa classifications, as well as certain categories within the J visa classification. This includes the derivative family members of the principal nonimmigrant who seek admission in, for example, H-4, L-2 or J-2 status. According to the Proclamation, the bar continues in effect through December 31, 2020, but may be extended.

However, the bar on entry only applies to an individual who satisfies all of the following criteria:

(1) is outside the United States on the effective date of the Proclamation, which is 12:01 am EDT June 24, 2020; and

(2) does not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and

(3) 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.

With respect to the first criterion, on its face the Proclamation does not bar an individual currently in the U.S. in, for example, B-1/B-2 visitor status, but who later travels abroad to apply for an H-1B visa in order to be admitted in H-1B status. If the individual was in the United States when the clock struck 12:01 am EDT on June 24, 2020, that individual does not satisfy the first criterion.

Likewise, with respect to the second criterion, on its face the Proclamation does not bar an individual currently abroad who has a valid nonimmigrant visa in a different classification, but who seeks entry in one of the classifications subject to the bar. For instance, an individual who wishes to enter the U.S. as an H-1B, doesn’t have an H-1B visa, but does have a B-1/B-2 visitor’s visa. The Proclamation speaks of having “a” nonimmigrant visa valid on the effective date, Might that not be what was intended, and might that be “clarified” in the future? This appears to be an open question.

As to the third criterion, consider an H-1B, for example, who is currently abroad, does not have an H-1B visa valid as of the effective date of the Proclamation, but does have an Advance Parole document that was valid upon departure, valid as of the effective date of the Proclamation, and valid as of the date of return to the U.S. Assuming the return to the U.S. can be accomplished logistically given the current challenges attendant to international travel, such individuals would not satisfy the third criterion and therefore would not be subject to the bar.

The Proclamation does not apply to those seeking entry in, for example, B-1, B-2, TN, O-1, E-1, E-2 or E-3 status. It only applies to the specific classifications listed — H-1B, H-2B, L, and certain categories within the J-1 classification — and their derivative classifications (e.g., H-4, L-2 and J-2).

Canadians

The wording of the Proclamation leaves some open questions with respect to Canadians because Canadians seeking H-1B or L entry do not require a visa. Might Canadians be advantaged in that a Canadian who is currently out of the U.S. and who has a recently approved H-1B petition but has neither a visa (because a visa is not required) nor an H-1B Form I-94 card still be admissible upon application at a port of entry? This is unclear.

Conversely, might Canadians have been inadvertently disadvantaged? Since Canadians don’t need H-1B or L visas, might the “official travel document other than a visa” language in the Proclamation be construed as excluding the Form I-94 that a Canadian H-1B is given at the port of entry upon first applying for admission. In this context, the Form I-94 serves as the functional equivalent of a visa but is not actually a visa, and is not specifically included in the examples of an “official travel document other than a visa.” Does this mean that a Canadian H-1B who has a valid H-1B Form I-94 but who is outside the United States at 12:01 am EDT on June 24, 2020 is barred under the terms of the Proclamation?

Until there is further guidance or clarification, or a discernible pattern emerges regarding the treatment of Canadians, these are open questions. However, given the intent of the Proclamation, the most likely outcome seems to be that a Canadian who has been issued a Form I-94 for admission as an H-1B will be treated as having an official travel document other than a visa for purposes of being exempt from the bar to admission.

Interplay With Other Current Events

COVID-19 has made travel to and from the United States a challenging and in some cases an impossible endeavor. Another result of COVID-19 has been the worldwide shutdown of non-emergency consular services at U.S. embassies and consulates abroad. Due to a variety of factors, it is anticipated that the reopening process is likely to be extremely slow and it may well be several months still, and possibly more than several months, before things return to anything approaching normal such that it is possible to obtain a visa appointment within a reasonable time frame.

Consequently, unless the bar is extended beyond December 31, 2020, the practical effect of the Proclamation may not be as broad as it might appear at first glance. Many of those individuals to whom it does apply — those currently out of the U.S. and without a currently valid visa — would have had difficulty obtaining the necessary visa and traveling to the U.S. much before December 31, 2020.

Caution on Travel Abroad Even if Exempt From the Bar

Example 1: H-1B departs the U.S. after the effective date of the Proclamation, and already has an H-1B valid as of the effective date of the Proclamation and through the return date.  He or she would not be covered by the bar. Nevertheless, a degree of caution is in order as it remains to be seen how things will play out on the ground at Customs and Border Protection (CBP) ports of entry following the issuance of the Proclamation.

Example 2: L-1 departs the U.S. after the effective date of the Proclamation, does not have an L-1 visa valid through the date of return to the U.S., and therefore must apply at a consulate abroad for an initial or new visa in the applicable classification. Assuming it is possible to obtain a visa appointment at a consulate, he or shes would not be covered by the bar. However, perhaps an even greater degree of caution would be in order in this circumstance. With the issuance of the Proclamation, it would not be surprising if we saw consular officers view H-1B and L (and derivative) visa applications with a considerably more jaundiced eye, subject more applicants to administrative processing, or otherwise find themselves more prone to look for reasons to deny or delay. Prudence would suggest keeping a watchful eye on how things play out in this context once travel is possible and once it is possible to obtain visa appointments.

Other Exemptions From the Bar on Entry

The Proclamation expressly does not apply to U.S. lawful permanent residents (“green card holders”), and also exempts the following categories of foreign nationals who would otherwise be subject to the bar on entry:

  • The spouse and most minor children of U.S. citizens
  • Individuals seeking to provide temporary labor services essential to the U.S. food chain
  • Individuals whose entry is determined to be in the national interest by the Secretary of State or the Secretary of Homeland Security

Consular officers are directed to determine in their discretion whether a nonimmigrant applying for a visa in a classification subject to the Proclamation has established eligibility for one of these exceptions.

With respect to the national interest exception, the Secretary of State, the Secretary of Labor and the Secretary of Homeland Security are directed to define the categories of those covered, including those 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 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.  Depending on how broadly or narrowly those categories are defined, there may be opportunities for overcoming the bar based on the facts and arguments presented to the consular officer.

The Road Ahead

The Secretary of Labor, in consultation with the Secretary of Homeland Security, is directed, as soon as practicable, to consider promulgating regulations or take other appropriate action to ensure that the presence in the U.S. of foreign nationals who have been admitted or otherwise provided a benefit pursuant to the EB-2 or EB-3 immigrant visa programs or the H-1B nonimmigrant visa program, or who are seeking admission or benefit under these programs, does not disadvantage U.S. workers.

What could this be intended to signal? Time will tell, but it would not be entirely unexpected if in the coming months we saw an increase in the number of PERM labor certification applications subject to audit by the Department of Labor, increased use of supervised recruitment in connection with PERM labor certification applications, or a proposal or measure establishing a minimum wage level threshold for H-1B filings and PERM prevailing wage determinations.  In the weeks prior to issuance of the Proclamation, there was talk of a substantial increase in H-1B filing fees, and of regulatory or other action that would effectively eliminate the two-year STEM OPT extension for students who have earned U.S. degrees in a STEM field.  It is also known that a regulation eliminating the H-4 spouse EAD regulation is in process. While these were not specifically addressed in the Proclamation, it is not far-fetched to think that these would be considered within the scope of measures designed to ensure that the programs in question do not disadvantage U.S. workers.

For more information, please contact Jeffrey M. Zimskind or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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