Citing a threat to the jobs of American workers amid the COVID-19 crisis, President Trump has issued a proclamation that suspends entry to the U.S. of foreign nationals seeking certain employment-based nonimmigrant visas.[1] The Executive Order prohibits entry into the U.S. for new H-1B, L-1, H-2B, and certain J-1 nonimmigrants, as well as their dependents. It is in effect from June 24, 2020 at 12:01am EST through December 31, 2020.

The ban applies only to foreign nationals who are currently outside the United States and who do not hold a nonimmigrant visa or official travel document that is valid as of June 24. The ban does not affect international students on F-1 visas, and it does not apply to:

• Foreign nationals physically present in the U.S. when the ban goes into effect
• Foreign nationals that have a valid visa or advance parole document, even if they are abroad
• Lawful permanent residents
• Spouse or child of a U.S. citizen
• Foreign nationals entering to provide temporary labor or services related to U.S. food supply chain

The proclamation also provides for discretionary waivers of the restrictions for foreign nationals whose entry would be in the U.S. national interest, including those who are necessary to facilitate the economic recovery of the United States and those involved with treatment and prevention of COVID-19.

While Trump’s proclamation does not directly impact the adjudication of these employment-based nonimmigrant visa petitions within the United States, the proclamation does direct the Department of Homeland Security and the Department of State to issue regulations that could affect eligibility for work visas by essentially “raising the bar” for qualification. Furthermore, the proclamation directs the Secretary of Labor and the Secretary of Homeland Security to issue regulations that may affect eligibility for EB-2 and EB-3 immigrant visas. The potential changes to regulations that determine the requirements a foreign national must meet to qualify for a particular visa are unknown, but the directives in the President’s proclamation are certainly troubling. Gee & Zhang is closely monitoring this situation.

The relatively brief Executive Order is not clear on several circumstances that may affect holders of nonimmigrant work visas, including implications for work visa renewals or extensions and implications for spouses of H-1B and L-1 visa holders.

In the first instance, the order does not directly address whether holders of valid H-1B and L-1 visas will be able to leave the country and be issued renewed visa stamps at U.S. Consulates abroad once they reopen for visa services. Because these nonimmigrant workers were in the U.S. when the ban went into effect, we suspect that holders of these valid visas will be permitted to do so. Nonetheless, how the executive order is implemented in practice by the various government agencies may vary. Por ejemplo, the U.S. Consulate in New Zealand has just advised on their website that routine visa services, including appointments, for H, L, and J categories affected by the Executive Order have been suspended through 12/31/2020. For now, we advise clients who are currently in the U.S. in H-1B, H-4, L-1, or L-2 status with an expiration date within the next 180 days to file requests for extension with the USCIS promptly.

The President’s proclamation also is not explicit as to whether spouses or children who do not currently hold valid H-4 or L-2 visas will be able to now obtain visas to join their H-1B or L-1 family member currently in the U.S. However, given that the order does make an explicit exception for spouses and children that already hold valid H-4 or L-2 visas, we suspect that the government’s intention is to also suspend the issuance of new visas to H-4 or L-2 family members, thus potentially prolonging the separation of these families.

Lastly, note that the President’s latest Executive Order extends the suspension of immigrant visa issuance at U.S. consulates abroad through December 31, 2020.

In sum, the Executive Order newly impacts foreign nationals who are abroad who have not yet received a nonimmigrant U.S. visa. However, even if the proclamation does not impact a foreign national, the COVID-19 travel restrictions still apply. también, additional regulations, if implemented, could result in further restrictions. Because of the potentially serious challenges that international travel presents for foreign nationals who are currently in the U.S., we urge you to contact a Gee & Zhang attorney to discuss your particular situation before traveling outside the U.S.

[1] https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/