UPDATE – Trump Proclamations Halting or Delaying Immigration
July 22, 2020
On July 22, 2020, the Department of State (DOS) further explained the “national interest” exceptions to the current policy of nonissuance of H-1B, L-1, J and Immigrant Visas:
For H-1Bs, exceptions are available in these situations:
- For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
- Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
For H-2Bs, exceptions are available in this situation: Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
For J-1 visas, exceptions are available in these situations:
- Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.
- Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
- Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
- An exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
- Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
- Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.
- Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.
For L-1 visas, exceptions are available in this situation: Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
H-4, L-2, and J-2 visas exceptions: National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to P.P. 10052 (including those that have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.
Exceptions under P.P. 10014 for certain travel in the national interest by immigrants may include the following
Applicants for Immigrant Visas: Applicants who are subject to aging out of their current immigrant visa classification before P.P. 10014 expires or within two weeks thereafter. Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa application appointment at the closest Embassy or Consulate and a decision will be made at the time of interview as to whether the traveler has established that they are eligible for a visa pursuant to an exception. Travelers are encouraged to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.
The Department of State will continue to issue H-4, L-2, and J-2 visas to otherwise qualified derivative applicants who qualify for a national interest exception, such as those seeking to join a principal applicant currently in the United States.
Applicants for immigrant visas covered by Presidential Proclamation 10014, as extended by P.P. 10052, including Diversity Visa 2020 (DV-2020) applicants, who have not been issued an immigrant visa as of April 23 are subject to the proclamation’s restrictions unless they can establish that they are eligible for an exception. No valid visas will be revoked under this proclamation.
July 16, 2020
On July 16, 2020, the Department of State (DOS) provided limited exceptions to the Presidential Proclamations banning visa issuance for certain categories (see below postings). These provide some recognition of humanitarian needs to travel, public health, and national security.
These limited exceptions include:
- applicants who are subject to aging out of their current immigrant visa classification before the relevant proclamations expire or within two weeks thereafter;
- certain H and J visa applicants who are traveling to work in support of a critical U.S. foreign policy objective (such as COVID-19 response) and/or traveling at the request of the U.S. government;
- spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to Presidential Proclamation 10052.
DOS also noted that it “will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States.” DV-2020 applicants, who have not been issued an immigrant visa as of April 23, 2020, will continue to be subjected to restrictions. No valid visas will be revoked.
June 22, 2020
On June 20, 2020, President Trump issued a new proclamation, suspending the issuance of visas in certain nonimmigrant categories, namely, H-1B, H-2B, J-1 and L-1.
The Administration also extended its previous Presidential Proclamation, issued on April 22, 2020 and discussed below: the earlier Proclamation suspended the entry of certain immigrants into the United States. A summary of the earlier Presidential Proclamation can be found here.
The new Proclamation suspends the issuance of visas for those seeking entry as:
- H-1B and their dependent family members
- H-2B visa and their dependent family members
- J visa for interns, trainees, teachers, camp counselors, au pairs, or summer workers and their dependent family members
- L visa and their dependent family members.
So employers of persons in those categories should advise the workers in the U.S. not to travel internationally unless they already have their visas or another official travel document (such as a transportation letter, boarding foil, or advance parole document).
As before, certain persons are exempt from the extended ban:
- lawful permanent residents
- spouse or child of a U.S. citizen
- any individual seeking entry to provide temporary labor essential to the U.S. food supply chain
- any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
April 22, 2020
On April 22, 2020, President Trump signed a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”
Many clients are concerned what the new “immigration ban” will mean for their cases. By cutting off all visa interviews at American Consulates since COVID-19 began, the Administration had already thwarted immigration from outside the U.S. for nonimmigrant and immigrant cases.
Going forward the ban does not apply to those physically present in the U.S. Those people should be able to extend their statuses and to complete their cases. For now, people in the U.S. will be able to extend employment authorization as needed; H-1Bs, O-1s, TNs, etc. inside the U.S. will be able to extend their status as needed and to change from other statuses (J-1 or F-1) to those, and; permanent residence cases processed inside the U.S. will proceed on course.
The proclamation becomes effective at 11:59 p.m. today, Thursday, April 23, 2020 (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant who:
- Is outside the United States on the effective date of the proclamation;
- Does not have a valid immigrant visa on the effective date; and
- Does not have a valid official travel document t (such as a transportation letter, boarding foil, or advance parole document)
Certain persons are exempted from the Proclamation:
- Lawful permanent residents (LPR)
- Individuals and their spouses or children seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)
- Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program
- Spouses of U.S. citizens
- Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa
- Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)
- Members of the U.S. Armed Forces and their spouses and children
- Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)
- Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).
- Nonimmigrant visa holders. However, the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.
- Asylum seekers
The proclamation expires in 60 days but may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS, in consultation with the Secretaries of State and Labor, are supposed to recommend whether the President should continue or modify the proclamation.