Impact of Executive Order Suspending Entry of Certain Employment-Based Nonimmigrants
Following President Trump's Presidential Proclamation on April 22, 2020 to temporarily suspend immigrant visa processing and entry of certain immigrants into the United States, the White House has issued a new Executive Order entitled "Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak". This new order is directed at foreign nationals and their dependents who seek to obtain visas in the following classifications: H-1B and H-2B, L-1, and J-1 for participation in intern, trainee, teacher, camp counselor, au pair, or summer work travel programs. Other visa classifications, such as B-1, F-1, O-1, and TN, are not addressed by this proclamation.
Who is affected by this proclamation?
The proclamation applies to foreign nationals who 1) are outside of the U.S. as of the effective date on June 24, 2020; 2) do not possess a nonimmigrant visa valid as of the effective date; and 3) do not have an official travel document other than a visa, such as an advance parole. For affected individuals, this suspension will remain in place until December 31, 2020 or until the program has been further modified or rescinded. This proclamation does not affect nonimmigrants already in the U.S. as of the effective date, although further guidance may be forthcoming to clarify if such nonimmigrants will be subject to the suspension if they choose to depart the U.S. in the future.
However, this proclamation would appear to affect the dependents of a foreign national who might not have joined the principal nonimmigrant upon his or her initial entry. For example, if a spouse and children were waiting for the school year to end in the home country before obtaining the visa to join the principal nonimmigrant, then it appears they will not be able to do so for the duration of the proclamation.
In addition to foreign nationals who already possess the required visa or are in the U.S., the proclamation provides for several exceptions, including lawful permanent residents, spouses or children of U.S. citizens, workers essential to the U.S. food supply chain, and foreign nationals who have obtained a determination from the State Department or Department of Homeland Security that their entry would be in the national interest. Whether such entry is in the national interest will depend on a variety of factors that would need to be considered on a case-by-case basis.
Remaining Questions
The terms of the proclamation leave several questions unanswered, including:
Canadian nationals are not required to have a visa to enter the U.S. and can ordinarily use their passport and petition approval notice or unexpired I-94 to enter the U.S. A Canadian seeking to enter the U.S. in one of these designated classifications could argue that this combination of documentation constitutes official travel documentation for the purposes of entry into the U.S. The order does not address this circumstance and it is unclear how the CBP will process these types of applications for entry.
Nationals of Chile and Singapore seeking entry under the free trade agreement in H-1B1 status are often grouped under the H-1B classification. The proclamation does not specify a definition or code section in listing the affected nonimmigrant classes so it currently remains to be seen whether in practice these nonimmigrants would be affected by the proclamation. We expect that such status will be exempt from the order but foreign nationals could face some confusion or misunderstandings when processing such a visa application.
Under the express terms of the proclamation, an individual in the U.S. on the effective date would not be affected by the suspension even if he or she were to subsequently travel abroad to apply for the new visa. However, until such guidance is issued to confirm the eligibility to apply for a new visa and re-enter the U.S., it is recommended that individuals in these classifications avoid leaving the U.S. if possible.
The administration will continue to review the situation and periodically evaluate the impact to determine if any changes need to be made.
Unlike the previous order, this proclamation could have severe tangible impact at least in the immediate term. Individuals who had already been stranded abroad while awaiting the consulates to resume visa operations due to COVID-19 could now find themselves waiting for an additional six months abroad before being able to apply for the visa to return to the U.S.
Robert J. Lee
Yane Park McKenzie
Compliments of Pepper Hamilton/Troutman Sanders – a member of the EACCNY.