On June 22, 2000, a new Presidential Proclamation was issued making drastic changes that President Trump claims are necessary to protect U.S. workers. The Proclamation will suspend the entry into the U.S. of foreign nationals in the H-1B, L-1, H-2B, J-1 visa categories, and related categories for dependents, with some exceptions. This means that foreign nationals with these valid non-immigrant visas may be barred from reentering the U.S. if their visa stamps or travel documents have expired as of June 24, 2020.
The nonimmigrant travel ban will take effect starting June 24, 2020 and continue through December 31, 2020, with the potential to be extended further.
Who is Affected?
The following nonimmigrant visa categories are subject to the ban:
- -H-1B nonimmigrants;
- -H-2B nonimmigrants;
- -L-1A executives and managers;
- -L-1B specialized knowledge workers;
- -J-1 interns, trainees, teachers, camp counselors, au pairs and summer work travel participants;
- -The dependent spouse and children of each of the above categories.
The ban will prohibit the entry of foreign nationals in these non-immigrant visa categories who also meet the following:
- -They are outside of the U.S. as of June 24, 2020; and
- -They do not hold a valid visa stamp or advance parole or other travel document as of the issuance of the Proclamation on June 22, 2020.
Additionally, effective immediately, the proclamation extends the existing ban on certain immigrant entries through December 31, 2020, namely affecting those coming to the U.S. on an immigrant visa for the purpose of becoming a lawful permanent resident (LPR or “green card” holder).
Who is Exempt from this Entry Ban?
The following individuals are specifically exempt from this entry ban:
- -US. lawful permanent residents who are abroad;
- -Spouse and children of U.S. citizens that are abroad;
- -Foreign nationals who are already in the U.S.;
- -Foreign nationals holding a valid visa stamp, advance parole or other U.S. travel document on June 24, 2020, even if they are outside the United States when the ban takes effect;
- -J-1 exchange program participants other than interns, trainees, teachers, camp counselors, au pairs, and summer work travel participants; and
- -Foreign nationals entering to provide temporary labor or services essential to the U.S. food supply chain.
Furthermore, the entry ban does not apply to the following:
- -Other nonimmigrant workers coming to the U.S. in other employment-based visa categories, such as TNs for Canadians and Mexicans, E-3s for Australians, H-1B1s for Singaporeans and Chileans, O-1s for extraordinary workers, E-1 treaty traders and E-2 treaty investors, H-3 trainees, P performers and athletes, R-1 religious workers, etc.
- -Individuals seeking H-1B, H-2B, L-1 or J-1 changes of status or extensions of status in the U.S.
Importantly, foreign nationals who applied for the FY 2021 H-1B cap and are waiting for their change of status to H-1B status are not affected by this proclamation.
Waivers to the Entry Ban:
The Proclamation provides for certain discretionary waivers to allow entry into the U.S. for individuals subject to the entry ban. Waivers are to be decided on a case-by-case basis and are likely reserved for extremely special circumstances where the entry would serve the national interest of the U.S., such as:
- – Those who are necessary to facilitate the immediate and continued economic recovery of the United States;
- – Those involved with clinical care or research related to the diagnosis, treatment and prevention of COVID-19; and
- – Those who are critical to the defense, law enforcement, diplomacy or national security of the United States.
What About Canadian’s who do not Normally Require Visa Stamps to Travel:
The proclamation was unclear how Canadians on the H-1B, H2B, L-1 and J-1 status would be affected. US Customs and Border Patrol Headquarters has since clarified that Canadians entering as H, L or J nonimmigrants are exempt from the Presidential Proclamation issued on June 22, 2020, and effective on June 24, 2020. Guidance has since been provided to local Customs and Border Patrol (CBP) ports on this issue.
The Proclamation will likely face lawsuits in federal court and if successful, it is possible that the proclamation could end sooner than the stated end on December 31, 2020. However, it is imperative that foreign nationals avoid traveling outside of the U.S., if possible. In addition to this newest ban, there are several restrictions already in place that limit the entry of foreign nationals entering the U.S., such as those that have visited certain countries, including 26 European countries and Brazil. As such, a foreign national’s ability to return to the U.S. is more uncertain than ever.
If you have any questions about how this most recent H-1B, H-2B, L-1 and J-1 travel ban affects you or your employees, please contact an immigration attorney at Minsky, McCormick & Hallagan, P.C.