On June 22, 2020, the president issued a proclamation titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, that will go into effect at 12:01 a.m. EDT on June 24, 2020.
Section 1 of the proclamation extends the effective dates of the President’s April 22 Proclamation titled Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This proclamation suspended entry of certain new immigrants who do not already have an approved immigrant visa. It was originally valid for 60 days, until June 22, 2020. The new proclamation extends the period for an additional 4 months, until December 31, 2020.
Section 2 of the proclamation suspends "entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas" until December 31, 2020, subject to certain exceptions:
"an H-1B or H-2B visa, and any alien accompanying or following to join such alien [H-4];"
"a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien;"
"an L visa, and any alien accompanying or following to join such alien."
Importantly, the entry bar for those in J Exchange Visitor categories does not apply to exchange categories other than those listed. For example, it does not apply to participants in the J professor, research scholar, short-term scholar, college or university student, or ECFMG alien physician categories.
Section 3 of the proclamation establishes that this entry bar applies only to an individual who:
"(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission."
An amendment to the proclamation was issued on June 29, attempting to clarify the visa issue and appearing to confirm that visa exempt individuals, such as Canadian citizens, are not covered by the proclamation.
The new section 3 reads:
Sec. 3. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:
(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and
(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
Despite that Section 3 appears to require both that the person was outside the U.S. on the effective date and lacked a valid H, L or J visa on the effective date in order to be subject to the proclamation, the Department of State has announced its position not to issue any of the impacted visas through December 31, 2020. This means that even if a person was present in the U.S. with a valid visa on June 24, if that person departs the U.S. and requires visa re-stamping, they will be unable to do so during the proclamation’s effectiveness. If you are in the designated H, L, or J statuses you SHOULD NOT TRAVEL ABROAD without first speaking with a qualified immigration attorney.
In addition, the proclamation does not apply to:
"(i) any lawful permanent resident of the United States;
(ii) any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;
(iii) any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(iv) any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees."
The “national interest waivers” in Section 3(b)(iv) are intended to include those that:
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 United States facilities to help the United States combat COVID-19; or
are necessary to facilitate the immediate and continued economic recovery of the United States.
Additional Measures Called for by the Proclamation
Section 4 directs that, "Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”
Section 5 calls on the agencies to take substantial "additional measures," such as:
Directing the U.S. Department of Labor and U.S. Department of Homeland Security to ensure compliance with the permanent labor certification (PERM) and temporary labor condition application (LCA) statutory rules that are designed to protect U.S. workers;
Directing DHS and U.S. Department of State to ensure compliance with biographic and biometric data collection requirements;
Directing DHS to "take appropriate and necessary steps, consistent with applicable law, to prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States."
Directing DHS to "consider promulgating regulations or take other appropriate action regarding the efficient allocation of visas pursuant to section 214(g)(3) of the INA (8 U.S.C. 1184(g)(3)) and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers."
