On June 22, 2020, President Trump issued a proclamation suspending admission to the U.S. pursuant to the following visas: H-1B, H-2B, H-4, L, and certain J visa categories. The proclamation also extends prior restrictions on those outside the U.S. seeking permanent residence, discussed here in a prior LEGALcurrents. The proclamation is in place until at least December 31, 2020.
Effective June 24, 2020 at 12:01 am EDT, the proclamation suspends the entry of foreign nationals seeking entry pursuant to visas in the following categories: H-1B bachelor’s level professional workers, H-2B seasonal/temporary nonagricultural workers, L-1A multinational executives and managers, L-1B multinational specialized knowledge workers, and J-1 exchange visitors seeking entry as interns, trainees, teachers, camp counselors, au pairs, and summer work travel program participants. The proclamation also suspends the entry of dependent spouses and children for the listed categories, including those seeking entry pursuant to H-4, L-2, and J-2 visas. Foreign nationals are exempt from these entry restrictions if any of the following circumstances apply:
- They are physically present in the United States throughout June 24, 2020, commencing at 12:01 am EDT;
- They hold any type of temporary nonimmigrant visa that is valid on June 24, 2020. This does not need to be the visa for the restricted category, and would include a valid tourist visa;
- They hold an official travel document other than a visa, such as an advance parole document, a transportation letter, or an appropriate boarding foil, that is valid on June 24, 2020;
- They are seeking entry for a J-1 exchange program in a category other than as an intern, trainee, teacher, camp counselor, au pair, or summer work travel program participant. For example, J-1 college students, professors, research scholars, short-term scholars, and physicians are exempt from these restrictions.
- They are a lawful permanent resident (green card holder);
- They are the spouse or child of a U.S. citizen;
- They are seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain; or
- The Department of State or Department of Homeland Security deems their entry to be in the national interest. The proclamation provides that “national interest” shall include foreign nationals who are critical to defense, law enforcement, diplomacy, or national security; are involved with the provision of medical care to individuals hospitalized with COVID-19; are involved with the provision of COVID-19 related medical research; or are necessary to facilitate the immediate and continued economic recovery of the United States. National interest shall also include children who would otherwise “age out” of certain immigrant visa benefits, which typically happens at age 21.
While further guidance is needed, there is a reasonable argument that the proclamation does not apply to Canadian citizens. The reason is that the proclamation targets those foreign nationals entering pursuant to certain nonimmigrant visas, and Canadians do not require visas for any of the suspended categories. It may also be that a Form I-94 for a Canadian citizen outside the U.S. qualifies as a valid travel document, providing a separate basis for exemption. Given the uncertainty on these points, the safest course would be for any Canadians currently outside the U.S. to return to the U.S. before June 24, 2020 at 12:01 am EDT.
The proclamation also directs government agencies to promulgate several new policies and regulations. Some may be implemented relatively quickly, such as a requirement to collect biometrics (e.g., photographs, signatures, and fingerprints) before any foreign national may apply for a visa or seek admission to the U.S. Other changes, such as a proposal to reallocate H-1B visas to the highest paid workers, will require months, if not years, to implement through notice-and-comment rulemaking. The proclamation and the proposed regulations are very likely to be challenged in court.
Since routine visa services remain suspended at the vast majority of consulates worldwide, many foreign nationals impacted by this proclamation are already unable to enter the U.S. This may change as visa services are expected to resume in the coming months. Those impacted by the proclamation should work with HSE’s immigration practice group to identify applicable exceptions or alternate visa categories. We will continue to monitor this issue and provide updates as they become available. Please contact HSE’s Immigration practice group with any questions.
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