Impact of ruling in visa ban case limited by COVID-19 protocols, restrictions

13 Oct 20

UNITED STATES

The State Department has said it will not enforce the Trump administration’s work visa ban against applicants who are plaintiffs in a lawsuit challenging the ban. Officials stressed, however, that limitations in consular services because of COVID-19 and other restrictions may still prevent applicants from obtaining visa appointments at this time.

Key Points:

·         On Oct. 1, a federal judge in California issued a limited preliminary injunction preventing the government from enforcing the work-visa ban (Proclamation 10052) against the plaintiffs and their members. The plaintiffs in the lawsuit are the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), the National Retail Foundation, Technology Net (TechNet), and Intrax, Inc.

·         The State Department subsequently said it would not enforce Proclamation 10052 against J-1, H-1B, H-2B, or L-1 applicants who are “sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the above named organizations is no longer subject to (Proclamation 10052’s) entry restrictions.”

·         The agency noted, however, that many embassies and consulates abroad are still not operating at full capacity because of COVID-19 and that many posts are currently unable to process routine H, L, or J visa applications. Applicants may request emergency appointments, and the announcement said that consular officers will not consider Proclamation 10052 as a factor in deciding whether to grant an emergency appointment. The availability of emergency appointments is limited, however.

·         Applicants should also note that a number of other COVID-19 entry restrictions remain in effect, including bans on entry to foreign nationals who have been physically present in the past 14 days in Brazil, China, Iran, Ireland, the United Kingdom or any of the 26 countries in Europe’s Schengen Area. A State Department summary of the restrictions is available here.

Background: The State Department suspended routine visa services worldwide in March because of the COVID-19 pandemic. In July, the agency announced that U.S. embassies and consulates would begin a phased resumption of routine visa services.

BAL Analysis: While the work visa ban will not apply to plaintiffs in the lawsuit, member companies, or their employees, it remains difficult to obtain an appointment at an embassy or consulate at this time. Individuals who are subject to a physical presence-based ban will need to qualify for an exemption to be able to enter the U.S. Those who are considering travel to the United States, or leaving the United States and returning, are urged to work closely with their BAL professional before planning travel. BAL will continue to follow the administration’s response to the Proclamation 10052 litigation and will alert clients to any important developments.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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