The President issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” on June 22, 2020, limiting the admission of certain foreign nationals to the United States. This Proclamation includes an introduction describing the high unemployment rate resulting from the COVID-19 pandemic and the economic dislocation as justification for this ban on the admission of certain temporary visas. The President also extended the 60 day limitation of immigrant visas announced in the April 22, 2020 Proclamation until Dec. 31, 2020. In addition to the bar for immigrant visas, the Proclamation also bars foreign national citizens outside the United States who seek to enter with an H-1B, H-2B, L-1 and certain categories of J-1 nonimmigrant visas. The Proclamation does not apply to any person currently in the United States, and therefore will not affect extensions of status for H-1B, H-2B or L-1 (Persons in J-1 status are admitted for the “duration of status” and therefore generally do not require an extension.) The Proclamation takes effect on Wednesday, June 24, 2020 and will continue until Dec. 31, 2020, although the text of the Proclamation suggests it could be continued beyond this date.

The Proclamation specifically applies to all persons outside the United States who seek to enter on an H-1B, H-2B, or L-1 visa. However, as noted below, if an individual has already been issued a visa, the visa remains valid and the person is not barred. The Proclamation does not bar any individual who is present in the United States on June 24, 2020, the effective date of the Proclamation. Exchange visitors (J-1 visa) are also barred if they are seeking entry based upon an exchange visitor program for interns, trainees, teachers, camp counselor, au pair or summer work travel program. This does not include foreign medical graduates for graduate medical education, international scholars or students seeking entry in J-1 status.

The terms of the Proclamation list several exemptions from the bar and identifies the following individuals who remain eligible for admission to the United States in H-1B, H-2B, L-1 and J-1 status:

  • Persons who already have a valid nonimmigrant visa. Visas already issued will remain valid for the full term. As noted, the bar does not apply to persons in the United States on June 24, 2020, suggesting that persons in the United States will still be permitted to travel abroad, apply for a visa and return.
  • The Proclamation does not apply to Lawful Permanent Residents (Green Cards), or the spouse, or minor child of a U.S. citizen. There is also an exception for individuals seeking to provide labor or services “essential to the United States food supply chain.”
  • Finally, there is an exception for any individual whose entry is determined to be in the national interest, as determined by the Secretary of State or Homeland Security, or their designated subordinates. The text identifies those considered to be in the “national interest:”

Including those that 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 United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.

These exemptions will be interpreted and implemented by the Department of State and decisions on the exceptions are left to the individual consular officer.

Although the Proclamation has been described in press reports with a broad interpretation, it does not bar admission and does not limit the ability of the following individuals to remain in the United States:

  • All H-1B, H-2B, L-1 and J-1 employees currently in the United States. Individuals in the designated nonimmigrant status may continue to work in that status and apply for extensions as provided by the regulations. The ban only applies to persons currently outside the United States.
  • There are several other employment-based nonimmigrant categories that are not identified and therefore, not impacted by this Proclamation, including TN, E, O, Q, R and P visas.
  • Foreign students (F-1 or M-1 status) can continue to apply for visas and enter the United States. Once in the United States, students may continue their studies.
  • Applicants for Permanent Residence currently in the United States who have applied, or will apply for adjustment of status. Applicants granted advance parole while their applications to adjust status are pending are also exempted, and may travel returning on the advance parole.

The Proclamation issued in April had a brief note that suggested further restrictions, including the restrictions described in this Proclamation would be announced within 60 days. Similarly, this Proclamation also includes the suggestion that further restrictions for employers seeking an Alien Labor Certification (PERM Application) to support an EB-2 or EB-3 immigrant visa petition may be the subject of further restrictive actions by this Administration. The President has instructed the Secretary of Labor to consider regulations regarding the PERM program as soon as practical. This statement signals that the Administration is exploring limitations to the PERM program that will limit the ability of employers to file applications on behalf of employees.

The President claims legal authority for this Proclamation pursuant to section 212(f) of the Immigration and Nationality Act. This section grants the President the authority to bar entry to a foreign citizen, or class of foreign citizens if he determines this is in the national interest. This same provision was the basis of the travel bans issued early in the Administration. The early ban, popularly known as the “Muslim Ban,” was challenged in the courts as an unlawful exercise of Presidential authority, but was upheld by a closely divided Supreme Court (5-4 decision) in Trump vs. Hawaii. We anticipate that this proclamation and the justification for it will also be challenged in the courts.