PRESIDENTIAL PROCLAMATION SUSPENDING ENTRY OF FOREIGN NATIONALS THAT PRESENT A RISK TO THE US LABOR MARKET

On June 22, 2020, President Trump issued a Proclamation suspending entry into the United States for certain employment-based nonimmigrant visa holders. The Proclamation is effective June 24, 2020,and it suspends such entry until December 31, 2020, pursuant to INA §§ 212(f) and 215(a), with exceptions as outlined below. The Proclamation also extends to December 31, 2020 those limits concerning entry of immigrants introduced in the earlier Proclamation 10014.

Clients should contact counsel with any questions regarding the impact of this Proclamation on immigration status and benefits.  General inquiries or requests to set up a consultation may be made using Contact BMK, info@bmkllp.com, or by calling (212) 686-3838.

What Visa Categories Are Impacted?

Only the following employment-based, nonimmigrant visa categories are impacted:

  • H-1B and H-4 spouses and children accompanying or following to join
  • H-2B, and H-4 spouses and children accompanying or following to join them
  • J-1, for those participating in the following programs, and any J-2 spouse or children accompanying or following to join:
    • Interns
    • Trainees
    • Teachers
    • Camp Counselors
    • Au Pairs
    • Summer Work Travel (SWT) participants
  • L-1, and L-2 spouse or children accompanying or following to join

Are You Subject to the Suspension?

The Proclamation only applies to individuals in those H, J, and L classification categories listed above if all the following conditions are true as of 12:01 AM (ET) June 24, 2020:

  • The individual is outside the United States,
  • The individual does not have a valid corresponding visa, and
  • The individual does not have any other official travel document (such as a transportation letter, boarding foil, or advance parole document) other than a visa

Please note that Canadians who are entering the United States in H-1B, H-2B, J-1, or L-1 nonimmigrant status are exempted from the Proclamation (see next section below).

Who Is Not Impacted by the Suspension?

The E-1 E-2, E-3, O-1, P, and TN employment-based, nonimmigrant worker categories and F-1 and J-1 students are not impacted by the Proclamation. Likewise, Visa Waiver Program/ESTA visitors and B-1/B-2 visitors are not impacted.

Canadians entering the United States as H-1B, H-2B, J-1, or L-1 nonimmigrants are exempt from the Proclamation.

As written, the Proclamation does not cover those foreign nationals in H, J, or L classification in the United States as of June 24, 2020. Petitions/applications seeking to change or extend those foreign nationals’ nonimmigrant statuses within the U.S. may be filed. Similarly, the Proclamation does not bar those with valid visas issued prior to the effective date from entering the United States after the suspension goes into effect regardless of whether or not they have entered the United States on that nonimmigrant visa. However, questions still remain as to whether individuals now or soon to be in the United States may depart to renew or apply for an initial visa at a U.S. embassy or consular post. We encourage you to review this client advisory in the coming days as updates are made when any agency clarification is made.

Asylum seekers, including those seeking refugee status, withholding of removal, or protection under the Convention Against Torture (CAT) are also not impacted by the Proclamation.

Even while not subject to the Proclamation, it is generally advisable for foreign nationals now in the United States to forgo any international travel that is not imperative. We encourage you to contact counsel as any travel outside the United States becomes necessary for any foreign national so that any potential risk may be assessed at that time. Note that this Proclamation does not change any directives set forth in earlier COVID-19 related travel bans, which remain in effect, and routine visa services at embassies and consulates remain suspended.

Are There Exemptions?

Individuals in the following categories are exceptedfrom the suspension:

  • Lawful Permanent Residents
  • Spouse or child of a U.S. citizen
  • Any individual seeking entry into the United States to provide temporary labor essential to the U.S. food supply chain
  • Any individual whose entry into the United States would be in the national interest as determined by the Secretaries of State or Homeland Security, or their respective designees (see next section below)

Who is Eligible for a National Interest Waiver from the Suspension?

The following individuals are eligible for national interest waiver consideration:

  • An individual critical to the defense, law enforcement, diplomacy, or national security of the United States
  • An individual involved with the provisions of medical care to individuals who have contracted COVID-19 and are currently hospitalized
  • An individual involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19
  • Individuals necessary to facilitate the immediate and continued economic recovery of the United States
  • Children who would age out of eligibility for a visa because of this proclamation or Presidential Proclamation 100014

Possible Regulatory Activity:

The Proclamation also outlines areas in which regulations may be forthcoming, which include possible measures to ensure those foreign nationals seeking admission on an EB2 and EB3 immigrant visa or an H-1B nonimmigrant visa do not limit opportunities for U.S. workers.

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Please check back regularly, as we will continue to provide updates regarding the implementation of the Proclamation as more information becomes available. If you would like additional information concerning the Proclamation, including any possible application for a national interest waiver, please do not hesitate to contact us – Contact BMK.

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