On June 22, 2020, President Trump issued “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” temporarily suspending immigration of skilled workers receiving H-1B, H-2B, L-1, J-1, and dependent visas for family members. President Trump indicated that he issued this proclamation to protect American jobs during the ongoing COVID-19 pandemic and an expected subsequent period of substantial unemployment. This proclamation will make it more difficult for skilled and specialized workers, multinational managers and executives, au pairs, interns, and trainees to seek entry to work in the United States.
This proclamation also extends presidential proclamation 10014 issued by President Trump and dated April 22, 2020, which restricted the entry of certain new green card holders to the United States.
The current proclamation will be effective June 24, 2020 at 12:01 A.M. and will expire on December 31, 2020, unless otherwise extended by the Trump Administration.
To note, much of this proclamation contains language that is ambiguous, making it unclear how U.S. officials will interpret certain provisions restricting travel.
Prior to the implementation of this proclamation, much of the U.S. immigration infrastructure was already closed due to COVID-19, including U.S. Consular Posts abroad, which has restricted the ability of individuals to obtain visa stamps to enter the United States. Additionally, President Trump issued “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” on April 22, 2020, suspending the entry of certain new permanent residents into the United States for a period of at least 60 days. This proclamation has been extended through December 31, 2020. President Trump also suspended the entry of certain Chinese nationals in F-1 and J-1 status. In addition to these restrictions, the travel bans on most travel from the Schengen Zone, China, Iran, and Brazil remain in effect. While these restrictions may have had a limited impact on foreign workers in the United States, the Trump Administration has now issued new restrictions on skilled workers seeking entry into the United States.
The new proclamation is the product of an intense debate, with President Trump’s advisors advocating for heightened restrictions on visa holders working legally in the United States in H-1B, H-2B, L-1, and J visa status. Despite substantial pushback from U.S. businesses, the U.S. Chamber of Commerce, and immigration advocates, who rely on the talent of highly skilled professional workers in the United States to drive U.S. job creation and global business, the Trump Administration has issued the following restrictions.
Suspension and Limitation on Entry into the United States
The proclamation bans the entry of individuals in H-1B, H-2B, J-1, and L-1 status, as well as their dependents, to the United States through December 31, 2020 if they are outside the United States and either do not have a valid nonimmigrant visa or do not have a valid travel document, such as an advance parole document, as of June 24, 2020. Individuals who have valid visa stamps in their passport should not be impacted by the ban.
Restrictions on Visa Issuance and H-1B CAP Cases
Given the ongoing closures of U.S. embassies and consulates abroad due to COVID-19, issuance of nonimmigrant visas is already limited. There is no timeline as to when U.S. embassies and consulates will resume normal operations. This effectively means that even if an individual’s H, L, or J petition is approved by U.S. Citizenship and Immigration Services (USCIS)—and they are outside the United States—they cannot apply for a visa to travel to the United States. Additionally, the Trump Administration has effectively temporarily paused the issuance of certain non-immigrant visas, including H-1B, L-1, and J-1 visas, abroad through December 31, 2020. This proclamation will impact employers are seeking to employ H-1B CAP subject individuals who are outside the United States, as those individuals will not be issued a visa prior to the end of the year. The proclamation also restricts the transfer of multinational employees in L-1 status through the end of the year if they are outside the United States and do not have an L-1 visa stamp in their passport.
Exceptions to Visa Issuance and Travel Restrictions
Individuals otherwise prevented from obtaining a nonimmigrant visa or traveling to the United States under this proclamation can seek a limited exception to these restrictions. These exceptions are limited to:
- Lawful permanent residents of the United States;
- Spouses and children of U.S. citizens;
- Any alien entering the United States to provide temporary labor or services essential to the U.S. food supply chain; or
- Any alien’s entry that would be in the national interest of the United States.
The proclamation provides examples of services that would be in the national interest of the United States, including those critical to defense, law enforcement, diplomacy, national security, the provision of medical care to individuals who have contracted COVID-19, medical research to help the United States combat COVID-19, or individuals who are necessary to facilitate the immediate and continued economic recovery of the United States.
The Immigration team at Arnall Golden Gregory (AGG) has experience processing waiver applications under existing travel bans, but these exceptions are limited and it is unclear how the Department of Homeland Security, including Customs and Border Protection, and the Department of State will adjudicate requests for an exception on the grounds stated in the proclamation.
Future Regulations by the Trump Administration to Restrict Immigration
While the proclamation has already taken drastic steps to make it more difficult for skilled workers to enter the United States through the restrictions on visa issuance and entry, the Trump Administration is also considering further action to limit immigration into the United States. This summer, the administration is expected to undertake Rulemaking to further restrict immigration to the United States, including:
- Abolishing the existing STEM Optional Practical Training (OPT) program and creating a single, one-year OPT program, with additional academic restrictions.
- Changes to the H-1B requirements, including a new, extraordinary filing fee, redefining the employee-employer relationship, and redefining the term “specialty occupation.”
- Rescinding H-4 spousal work authorization.
- Eliminating work authorization for asylum seekers, asylees, individuals in Temporary Protected Status, and refugees.
This proclamation lays the groundwork for substantial rulemaking on these issues, as the proclamation directs the Departments of Homeland Security, State, and Labor to promulgate regulations in connection with visa issuance and qualifications. The proclamation also directs the Departments of Labor and Homeland Security to “consider promulgating regulations or take other appropriate action” directed at those seeking admission with EB-2 or EB-3 immigrant visas.
The on-going immigration restrictions—whether through presidential proclamations or rulemaking—are negatively impacting American companies and workers and will continue to do so as long as they remain in effect. The immigration team at AGG encourages all stakeholders to engage in the comment portion of Notice and Comment Rulemaking in order to voice their concerns to the White House and their elected officials. We will continue to provide updates as additional proclamations and potential regulations move into the rulemaking process.
Should you have any questions regarding The “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” or potential regulations, please do not hesitate to contact AGG lawyers Teri A. Simmons, Montserrat C. Miller, Stephen P. Pocalyko, or William G. Adams.