President Trump Announces Expanded Temporary Suspension of Immigrant and Nonimmigrant Visa Processing
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The latest proclamation issued by President Trump on June 22, 2020, affects a much broader group of individuals than the April 22, 2020 proclamation and will be in effect from June 24, 2020 until December 31, 2020. The proclamation indicates that it may be extended or modified as necessary. Impacted directly by this new proclamation are those individuals seeking to enter the United States who:
- Are outside of the United States on or after June 24, 2020;
- Do not have a valid nonimmigrant visa that is valid on or after June 24, 2020; and
- Are seeking entry pursuant to any of the following nonimmigrant visa statuses:
- H-1B specialty occupation worker or H-4 dependent of an H-1B skilled worker;
- H-2B non-agricultural, temporary worker or H-4 dependent of an H-2B seasonal worker;
- J-1 intern, trainee, teacher camp counselor, au pair or summer worker or J-2 dependent of a J-1 worker; or
- L-1 multinational manager or executive or specialized knowledge professional or L-2 dependent of an L-1 worker.
These individuals are now temporarily barred from entering the United States until December 31, 2020. The proclamation also extends the restrictions imposed by President Trump’s April 22, 2020, proclamation, which bars those individuals seeking to enter the United States as an immigrant (e.g., those seeking to enter the United States indefinitely; a/k/a, permanent residency).
The June 22, 2020, proclamation lists several groups of individuals who are not subject to the restrictions set forth in the proclamation. They include those who are:
- Already lawful permanent residents (a/k/a, green card holders);
- The spouse or child of a U.S. citizen;
- Individuals seeking entry to provide temporary labor essential to the U.S. food supply chain; and
- Individuals whose entry would be in the national interest of the United States as determined by Department of State or Department of Homeland Security. For purposes of determining which individuals are covered by the national security exception, the agencies are to consider 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 either the April 22, 2020 or June 22, 2020, proclamations.
Similarly, the April 22, 2020, proclamation specifically carves out several groups of individuals who will still be able to seek an immigrant visa while the proclamation is in effect. The exempted individuals include those who are:
- Already lawful permanent residents (a/k/a, green card holders);
- Seeking to enter the United States on an immigrant visa as a physician, nurse or other health care professional, or the spouse or unmarried child under the age of 21 of any such health care professional, in order to perform medical research or other research intended to combat the spread of COVID-19, or to perform work essential to combating, recovering from or otherwise alleviating the effects of the COVID-19 outbreak;
- Applying to enter the United States pursuant to the EB-5 immigrant investor visa program;
- The spouse of a U.S. citizen;
- The child of a U.S. citizen and under the age of 21;
- Prospective adoptees seeking to enter on an IR-4 or IH-4 immigrant visa;
- Determined by the Department of Homeland Security, and based on the recommendation of the U.S. Attorney General, to be an individual who would further important U.S. law enforcement objectives;
- A member of the U.S. Armed Forces or the spouse or child of a U.S. Armed Forces member;
- Eligible for a Special Immigrant Visa as an Afghan or Iraqi translator/interpreter or U.S. government employee (SI or SQ classification), or who are the spouse or child of any such individual; or
- Determined by the Department of State or Department of Homeland Security to be an individual whose entry would be in the national interest of the United States.
The June 22, 2020 and April 22, 2020, proclamations do not affect those who are:
- Currently in the United States in any nonimmigrant status, such as A, B, C, D, E, F, G, H, J, K, L, M, N, O, P, Q, R, S, T, TN or U. This means that, for example, individuals already in the United States in H-1B status may continue to extend their H-1B status, change H-1B employers, amend their H-1B status, etc., pursuant to existing applicable policies and regulations.
- Currently outside the United States and in possession of a valid, unexpired H-1B, H-4, H-2B, L-1 or L-2 visa that was issued on or before June 23, 2020.
- Located outside of the United State who currently have or who are seeking a nonimmigrant visa to enter the United States in any of the following nonimmigrant categories: A, B, C, D, E, F, G, H-2A, K, M, N, O, P, Q, R, S, T, TN or U.
- Exempt from needing a visa to enter the United States, such as Canadians and those entering under the Visa Waiver program.
- Located outside of the United State who are seeking a nonimmigrant visa to enter the United States in J-1 status under the college or university student or student intern; secondary school student; short term scholar; or special country program categories.
- Currently in the United States seeking lawful permanent resident status through adjustment of status.
- Currently in the United States seeking permanent labor certification.
- Currently in the United States seeking nonimmigrant J-1 waivers.
- Holding a valid Advance Parole document or other official travel document, such as a transportation letter or boarding foil.
- Seeking asylum, refugee status, withholding of removal or protection under the Convention of Torture.
The June 22, 2020, Executive Proclamation also includes several directives, including directives to:
- Have the Secretary of Labor issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, in the second (e.g., advanced degree and national interest) or third (professional and skilled-worker) preference immigrant visa categories, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.
- Have the Secretary of Labor undertake investigations of Labor Condition Application (LCA) violations by H-1B dependent employers or employers who have been previously found to be violators of LCA rules.
- Have the Secretary of Homeland Security 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.
- Have the Secretary of Homeland Security take steps to ensure that individuals 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
- Have the Secretary of Homeland Security take steps to prevent certain individuals who have final orders of removal; or who are inadmissible or deportable from the U.S.; or have been arrested for, charged with or convicted of a criminal offense, from being able to work in the United States.
While the June 22, 2020, proclamation makes sweeping limitations on the ability of individuals to apply for both immigrant and nonimmigrant visas and other benefits, the proclamation leaves many questions unanswered at this time. These questions will have to either be clarified by the White House, the various federal agencies involved with the issuance of these benefits or through litigation in the federal courts
Reinhart’s Immigration Law Team will continue to monitor the situation for any additional updates to changes in these areas. For questions about this proclamation, please contact Ben Kurten or your Reinhart attorney.