New Entry Ban on H-1B, H-2B, J-1, and L-1 Nonimmigrant Foreign Workers
Yesterday evening, President Trump issued a new entry ban on the following nonimmigrant foreign workers: H-1B Specialty Occupation
, H-2B Temporary Non-Agricultural Workers
, certain J-1 Exchange Visitors
, and L-1A
Intracompany Transferees. We had previously reported that this might occur.
takes effect on June 24, 2020, at 12:01 AM EDT. It will remain in effect through December 31, 2020, and may be continued or modified as necessary. The purported rationale for the entry ban was protecting America's local workforce from additional competition.
The proclamation restricts the entry of the following categories of nonimmigrants, if they are (1) outside the United States as of June 24, 2020, at 12:01 AM EDT; AND (2) do not hold a valid visa, advance parole or other U.S. travel document:
Exemptions: The Proclamation will not apply to the following individuals:
- H-1B Specialty Occupation Workers;
- H-2B Temporary Non-Agricultural Workers;
- J-1 interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants;
- L-1 Intracompany Transferees; and
- Dependent spouses and children of the above categories.
Extension of immigrant visa ban:
- Any other nonimmigrant workers such as O-1 Extraordinary Ability, E-1/E-2 Treaty Trader/Investor; E-3 Australian Specialty Occupation, and TN Canadian/Mexican NAFTA Workers;
- Lawful permanent residents;
- Spouse or child of a U.S. citizen;
- Any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
- Any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:
- are critical to the defense, law enforcement, diplomacy, or national security of the United States;
- are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
- are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
- are necessary to facilitate the immediate and continued economic recovery of the United States; or
- are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.
The Proclamation also extends, effective immediately, Presidential Proclamation 10014
issued on April 22, 2020, which suspended the entry of certain immigrants
into the United States (foreign nationals with immigrant
visas that grant them permanent residence upon entry).
The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.
Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.
Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.
The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.
- Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.
- Undertake investigations of Labor Condition Application (LCA) violations pursuant to INA 212(n)(G)(i).
- Consider issuing regulations or other actions concerning the allocation of visas and ensuring that the presence of H-1B workers in the United States does not negatively affect U.S. workers. We understand that this would include prioritizing the highest paid H-1B workers in the numerical cap.
- Ensure that an individual will not be able to apply for a visa or admission to the United States until they have completed biometrics, including photographs, signatures, and fingerprints; and
- Take steps, consistent with law, to prevent certain individuals who have final orders of removal; who are inadmissible or deportable from the U.S.; have been arrested for, charged with or convicted of a criminal offense, from being able to work in the United States.