Yesterday evening, the President signed a Proclamation expanding the restrictions outlined in the April 22 Proclamation in an effort to protect the U.S. workforce amidst the economic downturn related to the ongoing COVID-19 pandemic. The Proclamation suspends the entry of any individual pursuant to H-1B, H-2B, L, and J nonimmigrant status, and their dependents (H-4, L-2, and J-2), until December 31, 2020. The Proclamation applies to individuals who are currently outside of the United States and are not in possession of a nonimmigrant visa or other official travel document valid as of June 24, 2020. In addition, the Proclamation extends the restrictions on the issuance of immigrant visas outlined in the April 22, 2020 Proclamation through December 31, 2020. This Proclamation contains a range of exceptions, which are detailed below.
The Proclamation is separate from Embassy and Consulate closures and COVID-19 related restrictions on travel to the US from certain countries, which continue to remain in effect. Yet, those measures must be read in conjunction the latest Proclamation. The June 22 announcement imposes further restrictions on the movement of foreign national employees into the United States that likely has a wider impact on US employers than the April 22 Proclamation.
Who is impacted?
The Proclamation applies to beneficiaries of H-1B, H-2B, L, or J visa petitions and their dependents (H-4, L-2, and J-2) who are outside the US on the effective date of this Proclamation, June 24, 2020, and (i) are not in possession of a valid H-1B, H-2B, L, or J visa on June 24, 2020, or (ii) do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020 or issued on any date thereafter that permits him or her to travel to the US and seek entry or admission. The Proclamation suspends visa issuance to any visa applicants who meet these criteria. Even if Embassies and Consulates were to reopen prior to December 31, 2020, consular posts will not issue H-1B, H-2B, L-1 or J-1 (and H-4, L-2, and J-2) visas unless the applicant falls under an exception.
The Proclamation does not directly apply to foreign nationals in the United States. On its face, the Proclamation also does not affect individuals who are currently present in the US in valid status, and who are in the process of extending their nonimmigrant status through a USCIS Service Center.
Who is excluded?
The Proclamation does not apply to individuals who are outside of the US and (i) are in possession of a nonimmigrant visa, or (ii) are in possession of another official travel document other than a visa. In addition, the Proclamation does not apply to individuals who are outside of the US and are already lawful permanent residents or immediate relatives of US citizens. There are also exceptions for individuals seeking to enter the US to provide temporary labor or services essential to the US food supply chain, and others whose admission to the US may be deemed in the national interest.
What is the effective date and how long will the suspension last?
Section 1 of the Proclamation encompasses the April 22, 2020 Proclamation, which suspended the issuance of immigrant visas (i.e., non-temporary visas) to individuals who are currently outside of the United States and do not currently have an immigrant visa. Section 1 of the Proclamation is effective immediately and is valid through December 31, 2020. The remainder of the Proclamation, which imposes restrictions on the issuance of H-1B, H-2B, L-1 or J-1 (and H-4, L-2, and J-2) nonimmigrant visas, is effective at 12:01 am Eastern daylight time on June 24, 2020. The Proclamation in its entirety is subject to renewal by the President as necessary. Within 30 days of June 24, 2020, and every 60 days thereafter, the Secretary of Homeland Security, in conjunction with the Secretaries of State and Labor, may recommend changes to the Proclamation.
Are there any other implications?
The Proclamation leaves open key questions that may be top of mind for foreign national employees and their US employers.
- Will there be any changes to green card or H-1B eligibility? While the Proclamation does not impose immediate changes to green card or H-1B eligibility, the Proclamation instructs the Department of Labor and the Department of Homeland Security to review the EB-2 and EB-3 immigrant visa classifications and the H-1B nonimmigrant visa classification to ensure the classifications and allocation of immigrant visas do not disadvantage United States workers.
- Does the Proclamation apply to visa exempt Canadian passport holders? Though the Proclamation makes no reference to Canadian citizens and their dependents who are beneficiaries of H-1B, H-2B, L, or J visa petitions, we interpret the Proclamation to apply with equal force to Canadian citizens, despite the fact that Canadian citizens are not required to obtain a visa stamp to enter the United States in the nonimmigrant classifications referenced in the Proclamation.
- Will foreign nationals be able to submit visa renewal applications when the Embassies and Consulates reopen? The Proclamation does not expressly prohibit the renewal of an expired visa stamp for a foreign national who was present in the US on June 24, and who subsequently travels abroad during the validity of the Proclamation. Due to this uncertainty, we strongly discourage employees in possession of an expired visa stamp from traveling internationally during the effective period of the Proclamation. It also remains unclear when consular posts will resume routine visa interviews and when travel restrictions will be lifted. The backlog in appointment availability could potentially extend beyond the end of the year, due to pent up demand.
What actions should my company take?
- Communicate with your foreign national employees. Anxiety amongst foreign nationals is high as a result of COVID-19 travel restrictions and recent immigration announcements. Consider holding a Town Hall to discuss immigration updates and provide a forum for your employees to ask questions.
- For your employees in the US with nonimmigrant work authorization that will expire within the next six months, consider filing extension petitions with the USCIS as soon as possible.
- For your employees in the US who may be eligible for an EB-2 or EB-3 immigrant petition, consider filing these petitions with the USCIS as soon as possible.
Encourage your employees to refrain from traveling internationally for the remainder of the calendar year if their visa stamp is expired. In the event that international travel becomes absolutely necessary for an employee, regardless of their visa stamp’s validity, please communicate with your Baker McKenzie attorney well in advance of their planned travel dates.