Trump proclamation to suspend new temporary work visas, extend immigrant visa restrictions

22 Jun 20

UNITED STATES

President Donald Trump has issued a proclamation that will restrict entry of certain foreign nationals on new nonimmigrant work visas. The proclamation also extends existing restrictions on immigrant visa applicants that were set to expire today.

Key points:

  • The proclamation will take effect at 12:01 a.m. EDT on June 24 and will expire Dec. 31, 2020.
  • The administration is extending the restrictions on immigrant (i.e., permanent) visas that have been in effect since April 23.
  • The proclamation imposes new restrictions on entry under the H-1B, H-4, L-1, H-2B, and J-1 nonimmigrant (i.e., temporary) visa categories, including those following to join an applicant. The restrictions do not apply to people who hold valid nonimmigrant visas on the effective date. They apply to foreign nationals who, as of the effective date, are (1) outside the U.S., (2) do not have a valid nonimmigrant visa, and (3) do not have another valid official travel document.
  • The following groups are exempt from the new work visa restrictions:
    • U.S. lawful permanent residents.
    • Spouses and children of U.S. citizens.
    • Current nonimmigrant visa holders.
    • Foreign nationals coming to provide temporary labor or services essential to the U.S. food supply chain.
    • Individuals whose entry would be in the national interest, as determined by the U.S. government.
  • International students on F-1 visas are not affected by the proclamation.
  • There is no reference to fee increases in the proclamation.
  • The proclamation requires the federal immigration agencies to establish standards to define categories of foreign nationals covered by the “national interest” exemption, including those that are critical to the defense, law enforcement, diplomacy, or national security of the U.S.; are involved with medical care or research directly related to COVID-19; or “are necessary to facilitate the immediate and continued economic recovery of the United States.”
  • The proclamation directs the Department of Homeland Security to consider promulgating regulations or taking other appropriate action “regarding the efficient allocation” of H-1B visas “and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers.” It also directs the Secretary of Labor to consider promulgating regulations or take other appropriate action to ensure that workers who seek employment-based second or third preference (EB-2 or EB-3) eligibility, or H-1B eligibility, do not disadvantage U.S. workers.

BAL Analysis: Today, travel to the U.S. by foreign nationals remains extremely limited. U.S. consulates abroad have generally suspended routine visa services, making it difficult to obtain new visas to travel to the U.S. Under White House proclamations, foreign nationals who have been physically present for a 14-day period in Brazil, China, Iran, Ireland, Schengen Area countries or the United Kingdom may not enter the U.S. unless they fall under an exemption. These restrictions are in effect until terminated by the president. Non-essential travel across land borders from Canada and Mexico also remains restricted until at least July 21.

When U.S. consulates abroad begin to reopen, the new proclamation will significantly restrict legal immigration avenues for foreign workers who are not presently in the U.S. Though it is based on the authority to deny entry and does not impact U.S. Citizenship and Immigration Services (USCIS) adjudications within the U.S., the proclamation directs the immigration agencies to issue regulations that could affect eligibility for work visas. BAL is continuing to review the new restrictions and will provide additional analysis in the coming days.

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