New Visa and Immigration Restrictions Announced – June 22, 2020 Presidential Proclamation Suspending Entry/Admission to the U.S.
On June 22, 2020, the president issued a new proclamation suspending entry into the United States for additional categories of visa applicants and extending the prior proclamation of April 22, 2020. The new proclamation is broad, and some portions may be subject to litigation. Specifically, the new proclamation goes well beyond suspending entry for certain non-immigrants, and purports to eliminate employment authorization for many already in the U.S. under certain circumstances (see below).
It is important that all non-citizens work with experienced immigration counsel from the beginning, and not travel abroad without reviewing their situation with legal counsel first. The terms of the proclamation are:
Proclamation of April 22, 2020 is extended:
The proclamation issued April 22, 2020 is extended through the end of the calendar year and may be continued beyond that date. This earlier proclamation restricted immigrant visas or entry as an immigrant (permanent resident), with certain exceptions. See our prior post for important details.
New proclamation restricts additional classifications of entrants:
The new proclamation affects non-immigrant, or temporary, visa categories, and also purports to create new restrictions on employment in the U.S. Section 2 of the new proclamation suspends entry to the U.S. pursuant to:
- An H-1B or an H-2B visa, and any dependent spouse or minor child seeking to accompany or following to join them (H-4),
- A J visa for those in any of the following categories:
- Camp counselor
- Au pair
- Summer work-travel program
- And any dependent spouse or minor child seeking to accompany or following to join the J visa holder (J-2)
- Note that J visas for other categories, including doctors, are not affected
- An L visa, and any dependent spouse or minor child seeking to accompany or following to join the L visa holder (L-2)
The restrictions apply only to those in above categories who:
- Are outside the United States on the effective date of the proclamation (June 24, 2020),
- Do not have a visa that is valid on the effective date,
- Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole) permitting him or her to travel to the U.S. and seek entry that is valid on the effective date, or issued thereafter.
Exceptions: Restrictions do not apply to:
- Lawful permanent residents of the U.S.
- Spouse or child of a U.S. citizen
- Any alien seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply
- Any alien whose entry would be in the national interest of the United States.
Whether an alien is covered by one of the above exceptions will be determined by the consular officer in his or her discretion. Section 4.
Determining “national interest”:
The executive branch shall establish standards to define the “national interest” for purposes of the proclamation, including those who are:
- Critical to defense, law enforcement, diplomacy, or national security of the United States,
- Involved with providing medical care to individuals with COVID-19 who are currently hospitalized,
- Involved in medical research at U.S. facilities specifically to help the U.S. combat COVID-19, or
- Are necessary to facilitate the immediate and continued economic recovery of the U.S.
Section 4(a)(i). Whether an alien is covered under the national interest exemption shall be determined in the discretion of the State Department or Department of Homeland Security. Section 4(a)(ii).
Exempt from the proclamation:
The restrictions shall not apply to alien children who as a result of the proclamation would turn 21 years old and so no longer qualify as a child. Section 4(a)(i).
Loss of employment authorization for those in the U.S.:
In addition to those found inadmissible under the numerous existing grounds of inadmissibility (including criminal grounds), the proclamation prohibits anyone either arrested or charged for an offense in the U.S. even if not convicted from obtaining authorization to work. Section 5(c)(iii). This provision is not limited to any specific type of visa or category under which the existing law allows for employment authorization, meaning it may purport to affect any type of employment authorization.
Further restrictions to come for H-1B and also EB-2 and EB-3 categories:
The proclamation instructs further regulations be considered to assure that the issuance of EB-2 or EB-3 immigrant visas or H-1B’s do not disadvantage United States workers. Section 5(b); Section 5(c)(iii). Note the existing law already requires as a prerequisite that the Department of Labor certify the job is one for which there aren’t available American workers. The Dept. of Labor will only provide this certification after a lengthy labor market test including recruitment for the specific position. We will provide updates regarding any new regulations that may come.
Additional measures to restrict the spread of COVID-19:
The proclamation instructs Health and Human Services, through Centers for Disease Control and Prevention to provide guidance on additional measures to reduce the risk that aliens seeking entry to the U.S. may introduce, transmit, or spread SARS-CoV-2 within the U.S.
The continuation of the April 22, 2020 proclamation is effective immediately, and shall expire on December 31, 2020, but may be continued “as necessary.” Section 1.
The effective date of this new proclamation is June 24, 2020. It shall terminate December 31, 2020 but may be continued as necessary. Section 7; Section 6.
Additional measures in the coming months:
Within 30 days of June 24th , and every 60 days thereafter so long as the proclamation is in effect, the executive branch shall recommend any modifications as may be necessary. Section 6.
While the proclamation is serious and adds even more restrictions to entering the U.S., many applicants may not be affected. For example, most H-1B applicants are already in the U.S. seeking a change of employer or to extend their status and are not seeking a visa or entry from abroad. Nevertheless, the ongoing modifications to government policies and practices make it essential that every affected individual seek experienced immigration counsel promptly.
We strongly recommend against leaving the U.S. prior to reviewing your situation with us. It may be allowable to leave if you already had a visa prior to the effective date, June 24, 2020. Needless to say, given the provision of this proclamation regarding employment authorization and any arrest even without being convicted, any non-citizen should exercise care in all of his or her actions.
Finally, expect to see announcements regarding additional proposed regulations pursuant to the proclamation as well as litigation against all or part of it.
We are actively involved in pursuing issues raised in the proclamation, and can share that CBP has clarified today (June 24, 2020) that the proclamation will not be applied to those who are visa-exempt, including most Canadians, or to foreign nationals who already have valid visas; automatic revalidation of visas likewise will not be affected by the proclamation. Canadians and all those seeking entry must still be mindful of other travel restrictions. The U.S. and Canada have agreed to continue the existing travel restrictions between the two countries that allow for travel mainly for business or emergent reasons only.
For any questions or to discuss your status, contact Attorney Barbara Marcouiller.