Trump Issues Proclamation Suspending Entry to the US in Several Major Work Visa Categories

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In a move that many had anticipated for some time, President Trump signed a Presidential Proclamation on Monday, June 22, suspending the issuance of work visas in the H-1B, H-2B, J-1 and L visa categories based on the administration’s belief that doing so will avoid the risk of “displacing and disadvantaging United States workers during the current recovery.”

The Proclamation becomes effective at 12:01 a.m. eastern daylight time on June 24, 2020 and remains in effect until December 31, 2020.

The Proclamation also extends until December 31, 2020 the President’s April 22, 2020 Proclamation suspending the entry of individuals in certain immigrant visa categories.

Who is Impacted

Individuals currently outside the US seeking a visa in the following categories will not be eligible to receive a visa unless they qualify for an exemption:

  • H-1B (and H-4 dependents)

  • H-2B

  • J-1 interns, trainees, teachers, camp counselors, au pairs, or summer work travel program participants (and J-2 dependents)

  • L-1A and L-1B (and L-2 dependents)

Who is Not Impacted

  • Individuals in H-1B, H-4, H-2B, J-1, J-2, L-1 or L-2 status who are currently present in the US are not impacted. These individuals can remain in the US and continue to be eligible to change and/or extend their nonimmigrant status from within the US.

  • Individuals who are currently outside the US, but already possess a valid H-1B, H-4, H-2B, J-1, J-2, L-1 or L-2 visa. These individuals will be able to re-enter the US using their previously-issued and valid visas.

  • It appears that Canadian citizens, who are generally visa-exempt, would not be barred from entering the US in H-1B, H-4, H-2B, J-1, J-2, L-1 or L-2 status under the stated terms of the Proclamation which seems to apply only to individuals seeking visas in the specified categories.

  • Individuals seeking a J-1 visa as a GME physician, research scholar, short-term scholar, professor or university student are not impacted.

  • Individuals seeking visas in the TN, O-1 E-1, E-2, E-3 and P-1 work visa categories are not impacted.

  • Individuals seeking an F-1 student visa or F-1 Optional Practical Training (OPT) work authorization are not impacted.

  • US citizens, their spouses, or their children, and US permanent residents are not impacted.

Exemptions

The following individuals outside the US who would otherwise be subject to the suspension of visa issuance in the specified categories may qualify for an exemption.

  • Individuals seeking to enter the US to provide temporary labor or services essential to the US food supply chain

  • Individuals whose entry would be in the “national interest” as determined by the Secretary of State and the Secretary of Homeland Security, including individuals who are:

    • Critical to the defense, law enforcement, diplomacy, or national security of the United States;

    • Involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

    • Involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or

    • Necessary to facilitate the immediate and continued economic recovery of the United States.

The Proclamation states that the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall establish standards to define categories of individuals covered by these “national interest” exemptions, but it does not indicate when such standards will be published. It is yet unclear how broadly or narrowly these exemption criteria will be interpreted, but considering the track record of this administration, it seems safe to assume they will be interpreted narrowly.

Additional Measures

The Proclamation also directs the Secretary of Labor and the Secretary of Homeland Security to consider promulgating regulations or take other appropriate action as soon as possible “regarding the efficient allocation” of H-1B visas and to ensure that the presence in the United States of foreign nationals in the US in H-1B status and those who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa do not disadvantage United States workers.

This language is consistent with previous speculation that any Proclamation suspending visa issuance would be followed up with regulatory changes creating additional restrictions on individuals already in the US in work visa categories.

Ellis Porter Analysis

The ability for foreign nationals to travel to the US was already severely limited by the suspension of routine visa services as US Consulates worldwide, travel bans impacting Brazil, China, Iran, Ireland, Schengen Area countries and the UK and the suspension of non-essential travel across land borders from Canada and Mexico.

Once US Consulates begin to reopen and general travel restrictions are relaxed, this new Proclamation will continue to restrict foreign nationals outside the US from receiving visas in the specified categories until the end of the 2020, limiting the ability of employers to access global talent and transfer employees from global operations.

Language in this new Proclamation also strongly suggests that additional regulatory changes are forthcoming that will further restrict eligibility for various US work visa categories.

This proclamation and any future regulatory actions that stem from it are likely to be challenged in court.

Questions?

If you have any additional questions about this latest Proclamation, please contact your Ellis Porter attorney and we will be happy to provide further clarification and assistance.

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