The latest Presidential Proclamation, “Presidential Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery

The latest Presidential Proclamation, “Presidential Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak”, takes effect on June 24, 2020 at 12:01 am Eastern Time and will remain in effect through December 31, 2020.  

The Proclamation extends Presidential Proclamation 10014 issued on April 22 which suspended the entry of certain immigrants into the U.S.  Troublingly, it also suspends the issuance of visas by U.S. consulates abroad for those seeking entry on an H-1B visa, H-2B visa, J-1 visa (specifically intern, trainee, teacher, camp counselor, au pair, or summer/work/travel J-1 applicants), and L-1 visa, along with any foreign nationals seeking to accompany them.

Note, the Proclamation only applies to the above individuals if they are:

• Outside the U.S. on the effective date of the proclamation (6/24/20);

• Do not possess a valid nonimmigrant visa that is valid on the effective date;

• Do not possess an official travel document other than a visa (such as an advance parole travel document, transportation letter, or boarding foil) that is valid on the effective date or issued after the effective date permitting the individual to be admitted to the U.S.

Exemptions
The Proclamation does not apply to the following individuals:

• Lawful permanent residents (green card holders);

• Spouse or child of a U.S. citizen;

• Any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;

• Any individual whose entry would be in the national interest as determined by the Department of State (DOS), the Department of Homeland Security (DHS), or their respective designees; and

• Asylum and refugee seekers.

To determine who is covered by the “national interest” exemption, the Proclamation directs the Department of Labor, DOS, and DHS to determine standards for those to whom such an exemption would be available, including any individuals who are:

• Critical to the defense, law enforcement, diplomacy, or national security of the United States;

• Involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

• Involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;

• Necessary to facilitate the immediate and continued economic recovery of the United States; or

• Children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

U.S. consulate officers abroad have discretion to determine if individuals fall within one of the above exemptions.

Directives for Additional Review and Measures

• Within 30 days of this Proclamation’s effective date, and every 60 days after, DHS, in consultation with DOS and DOL, will determine whether either proclamation needs to be modified;

• The Department of Health and Human Services (DHHS) will provide guidance to the DOS and DHS regarding measures to reduce the risk of those seeking entry to the United States introducing or spreading the COVID-19 virus, including subjecting those individuals to a COVID-19 test prior to arrival;

• Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, 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 pursuant to INA 212(n)(G)(i);

• Consider issuing regulations or other actions concerning the allocation of visas and ensuring that the presence of H-1B workers does not negatively affect U.S. workers, including 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 U.S. until they have completed biometrics, including fingerprints, photographs, and signatures;

• Take steps consistent with the law to prevent certain individuals who have final orders of removal, who are inadmissible or deportable, have been arrested for, charged with or convicted of a criminal offense, from being able to work in the U.S.

Please note, if you are in the United States at this time and are currently on or applying for H-1B, H-2B, J-1, or L-1 status but do not currently possess a valid visa stamp in one of these categories in your passport, the ImLaw team recommends that you refrain from traveling outside the U.S. through at least December 31, 2020 or until further notice based on this Proclamation.  Additionally, U.S. consulates abroad continue to be closed to routine visa processing at this time. 

If you are outside the United States at this time, and your H-1B, H-2B, J-1, or L-1 visa stamp is approaching its expiration date, the ImLaw team recommends that you return to the U.S. as soon as possible.  This is especially true if you have an underlying H or L petition approval that will be expiring shortly and need an extension of stay filed with the U.S. Citizenship and Immigration Services (USCIS).  If you are currently in a country that is subject to the existing entry bans (the Schengen area countries, the UK, China, Brazil, and Iran), you may want to consider trying to travel to Mexico or Canada (which will require you to quarantine in Canada for 14 days) and then reentering the U.S. from there.

Finally, please note that this Proclamation does not apply to individuals that are in the U.S. applying to change or extend their status with USCIS.

ImLaw will continue to monitor the impact and interpretation of this latest Presidential Proclamation and keep you informed.