President Trump signed a proclamation on June 22, 2020, suspending four visa categories of substantial importance to US companies—H-1B, L-1, H-2B, and certain J-1 visas—for the rest of the calendar year and laid the groundwork for regulatory changes to transform when and how employers can sponsor foreign workers to work in the United States. The executive order does not affect visa holders already in the United States who do not travel abroad or those who are abroad but have already obtained a visa or other travel document. Additionally, the order extends the provisions of the President’s April 22, 2020, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended for 60 days the issuance of new immigrant visas to applicants who are outside the United States.
The order also includes a mandate for subsequent rulemaking to address a wide-ranging series of measures including imposition of new recruitment and compliance obligations on employers, development of a revised regulatory scheme for allocation of and eligibility qualification for H-1B visas, and provision of enhanced investigative and exclusionary authority for consular and port officials.
The June 22, 2020, proclamation immediately extends the immigrant visa suspension, while the entry restrictions for H-1B, L-1, H-2B, and J-1 visas will take effect on June 24, 2020, at 12:01 a.m. EDT. Both provisions are effective until December 31, 2020.
A. Who Is Affected by the Visa Entry Bans?
Nonimmigrants in the following visa classifications and their dependents are subject to the ban on entry:
- H-1B specialty occupation professionals;
- L-1 intracompany executives, managers, and specialized knowledge workers;
- H-2B temporary non-agricultural workers; and
- J-1 intern, trainee, teacher, camp counselor, au pair, and summer work travel program beneficiaries.
The ban will only apply to individuals in these categories who are outside the United States on the effective date; are not in possession of a nonimmigrant visa on that date; and have no other authorization to travel to the United States, such as a transportation letter, an appropriate boarding foil, or an advance parole authorization. Thus, for example, the order will not affect individuals selected in the annual H-1B cap “lottery” who are in the United States on F-1 student visas, had post-graduation Optional Practical Training (OPT), and continue working in a “cap gap” status until October 1, 2020, when the fiscal year 2021 H-1B period begins. Similarly, multinational employees with previously issued, valid L-1 visa stamps who are abroad will remain eligible to travel to the United States throughout the tenure of the suspension.
B. Who Is Not Affected by the Visa Entry Bans?
The ban does not apply to the following:
- Individuals Who Are in the United States on June 24. Individuals lawfully present in the United States on the effective date of the proclamation remain eligible to retain or extend their status in the designated visa classifications. If eligible, they also may continue to pursue US permanent residency as applicants for adjustment of status, as the green card suspension only applies to applications for immigrant visas at the US consulates abroad.
- Individuals With Valid Visas on June 24. Individuals who have a nonimmigrant visa that is valid on June 24 may travel to the United States using their existing visas. Note that other travel restrictions designed to limit COVID-19 remain in effect, including restrictions on travel to the United States for individuals physically present in the Schengen Area, the United Kingdom, Ireland, China, Brazil, or Iran within 14 days of travel to the United States.
- Other Nonimmigrants. Individuals in categories other than H-1B, L-1, H-2B, and J-1 or their collective dependent visa categories may continue to apply for their visas and travel into the United States provided that other closings or travel restrictions, such as COVID-related lockdown measures, do not impact them. Common employment visa categories not affected by the executive order include the treaty-based TN, E-1, E-2, and E-3 categories, as well as the O-1 visa category.
- Individuals Who Will Work in the US Food Supply Chain. Individuals seeking admission to provide temporary labor or services essential to the United States food supply chain are not subject to the ban.
C. What Exceptions Apply?
Similar to the April 22 green card ban, the new order exempts certain workers seeking admission for such COVID-19-related purposes as health care and food supply services. The Department of Homeland Security (DHS), Department of State (DOS), and Department of Labor (DOL) will establish standards for approving exceptions for individuals who are:
- Critical to the defense, law enforcement, diplomacy, or national security of the United States;
- Involved in the provision of medical care to individuals who have contracted COVID-19 and are hospitalized;
- Involved with the provision of medical research at US facilities to help the United States combat COVID-19; or
- Necessary to facilitate the immediate and continued economic recovery of the United States.
These exceptions apply to immigrants whose entry was suspended under the April 22, 2020, proclamation as well as H-1B, L-1, H-2B, and J-1 workers affected by the new order. As with the President’s April 22 proclamation, lawful permanent residents, spouses and children of US citizens, and individuals seeking to apply for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture are exempt. The June 22 order directs DOS and DHS to address a problem created by the suspension of immigrant visa processing under proclamation 10014, i.e., children who age out of eligibility for a visa because of the suspension of visa processing and entry to the United States.
D. What Additional Measures Are Included?
Among the most aggressive provisions in the order are those requiring government agencies to promulgate regulations or institute administrative actions. These include the following required actions.
- The Department of Health and Human Services and the Centers for Disease Control are required to provide guidance to DOS and DHS for implementing measures that will prevent aliens seeking admission into the United States from spreading COVID-19.
- The order directs DOL, in consultation with DHS, to implement regulations that would ensure that issuance of employment-based second preference (EB-2) and third preference (EB-3) immigrant visas, H-1B visas, or other benefits do not disadvantage US workers, including with regard to the calculation of prevailing wages used in the PERM labor certification or H-1B Labor Condition Application process. Unlike the ban on entry, this section would encompass applicants for change, extension, or amendment of status and, in the case of EB-2 and EB-3, for adjustment of status to permanent resident.
- DOL is directed to begin investigations into H-1B employers that the Secretary reasonably believes to have violated their Labor Condition Application requirements.
- DHS is directed to coordinate with DOS to ensure that no alien is eligible for a visa or admission until they provide the federal government with their biographic and biometric information.
- DHS is tasked with preventing aliens from obtaining a work permit who are inadmissible, deportable, have final orders of removal, or have been convicted of any criminal offense or merely arrested or charged with a criminal offense.
- DHS also shall promulgate regulations for the efficient allocation of the annual quota of “cap subject” H-1B visas, while ensuring that US workers are not disadvantaged.
In addition, DHS, in consultation with DOS and DOL, shall recommend additional necessary changes periodically.
E. How Will the Order Be Implemented?
With regard to visas, DOS will establish procedures in consultation with DHS and DOL. With regard to border admissions, DHS will establish procedures in consultation with DOS. While such coordination is imperative, affected nonimmigrants can anticipate visa processing and travel delays.
The combination of the ban of multiple classifications of visas, as well as the proposed rulemaking, represents the most sweeping attempt in modern history to curb legal immigration. While the order does not immediately affect individuals who are in the United States or already have a visa or travel document on June 24, 2020, when the new provisions take effect, it severely restricts the ability of businesses to address upcoming workforce needs for senior executive, managerial, scientific, research and development, and skills gap positions. The resulting uncertainty, as well as the additional investigative, enforcement, and regulatory requirements, incentivizes business to concede the war on talent in this country and consider offshore options for investment and expansion.
For a heat map of countries which have travel, quarantine or health checks, or visa restrictions and for which travelers are impacted by those restrictions, see our Global Traveler Navigator tool.
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And for any legal questions related to this pandemic, please contact the authors of this Legal Update or Mayer Brown’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.