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    By: Nicolas J. Watkins, Shareholder, Miami

    Earlier this week, President Trump issued a Proclamation that provides for the suspension of entry into the United States of certain – not all - foreign nationals (and their dependents) coming here to work on temporary (nonimmigrant) visas in the  H-1B, H-2B, J-1, and L-1 categories.  The Proclamation became effective June 24, 2020, and will remain in effect until December 31, 2020, or longer, as may be deemed necessary.

    The Proclamation this week also extends the President’s April 22, 2020, Proclamation, which suspended for 60 days the issuance of green cards (immigrant visas) by U.S. embassies and consulates abroad to residency applicants outside the United States.  The green card suspension for immigrants has now been extended through December 31, 2020 to coincide with the suspension for temporary workers (nonimmigrants).

    The President’s Proclamation of June 22, 2020, does not affect those foreign nationals already in the United States on a valid visa on the effective date of the Proclamation.  Instead, the Proclamation is aimed at those foreign nationals outside the United States on June 24, 2020, who want to come here to work temporarily pursuant to one of the restricted visa categories.

    As the President’s preamble contained in the Proclamation explains, the suspension of entry for temporary foreign workers is needed in order to protect the U.S. job market and mitigate the economic impact of the COVID-19 pandemic on U.S. workers.  Whether the Proclamation will need to be modified will be reviewed and determined on a monthly basis by the Secretary of Homeland Security, in consultation with the Secretary of Labor and the Secretary of State.  

    Who Does the Proclamation Affect?

    Although it is a somewhat draconian measure, this week’s Proclamation does not affect all nonimmigrants; it is aimed at limiting those coming to the United States for temporary employment.  

    The Proclamation prohibits U.S. embassies and  consulates overseas from issuing visas to temporary workers seeking to enter the United States on H-1B visas (for those coming to fill positions in specialty occupations); H-2B visas (for skilled or unskilled workers in short supply); J-1 visas (for exchange student/visitors – limited to those participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel programs); and L-1 visas (for intracompany transferees).  The prohibition also includes any foreign nationals accompanying or following to join the principal visa holder. 

    However, the Proclamation only applies to those (i) temporary workers described above who were outside the United States when the Proclamation became effective; (ii) who do not have a nonimmigrant visa that was valid on June 24, 2020, the effective date of the Proclamation; AND (iii) who do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation, or issued after that date, to permit entry the United States.

    Individuals who satisfy all three of these criteria will be not be able to obtain visas erlamation Suspenfrom U.S. embassies or consulates overseas and will be refused entry into the United States. 

    As a practical matter, there are going to be a limited class of nonimmigrants who are outside the United States and who will no longer be able to obtain their intended visas to enter.  These include those who were in the process of applying for one of the affected visas at a U.S. embassy or consulate abroad and who have not yet had their visa interview.  Most notably, the entry into the United States of those who were hoping to obtain H-1B visas before entering the United States to start their H-1B employment on October 1 will be delayed until the termination of the Proclamation’s restrictions.  But individuals who depend upon the more short-term stay H-2B seasonal nonagricultural workers and J-1 exchange student/visitor programs visas are likely to be most disrupted; they might find that the short-term and often seasonal employment opportunities will be lost.

    Unluckily for companies doing business both in the United States and abroad, the L-1 visa category is included as an affected visa.  International companies will be unable to transfer their multinational managers and executives to work at the U.S. subsidiary or parent company. It might be argued that it is unlikely that these companies would replace their own foreign executive or manager in the United States with an American executive or manager who, presumably, would know very little of the international corporate synergies, and have no experience working within the corporate group. If this is true, then multinational companies, large and small, are going to suffer.  

    Who Does the Proclamation Not Affect?

    The Proclamation provides a list of those exempt from its restrictions.  Specifically, the Proclamation does not apply to (i) lawful permanent residents; (ii) spouses or children (under 21 years old) of U.S. citizens; (iii) individuals seeking entry to provide temporary labor essential to the U.S. food supply chain; and (iv) individuals whose entry would be in the national interest.

    To determine whether the entry of an individual into the United States is in the national interest and thereby exempt from the restrictions on visa issuance, the Proclamation directs the Secretary of State, the Secretary of Homeland Security, or their respective designees, to make that determination, and it also requires them to establish standards to define categories to permit such a determination, including for those who are (i) critical to the defense, law enforcement, diplomacy, or national security of the United States; (ii) involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; (iii) involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19; (iv) necessary to facilitate the immediate and continued economic recovery of the United States; or (v) children who would age out of eligibility for a visa because of this Proclamation or the President’s April 22, 2020, Proclamation.

    It will be up to the consular officers to determine, in their discretion, whether visa applicants fall within one of the categories exempting them from the Proclamation’s restrictions.

    By its  terms, the Proclamation does not affect individuals who were in the United States on the effective date of the Proclamation, or those who, even though outside the United States, had a valid visa in their passports on June 24, 2020, the effective date of the Proclamation. It also does not apply to those who had an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document) valid on June 24, 2020, or issued on any date thereafter to permit entry into the United States.

    As a result, therefore, those foreign nationals already present in the United States on H-1B, H-2B, H-4, J-1, J-2 , L-1 and L-2 nonimmigrant visas will not be affected and they will continue to be able to seek extensions of stay or changes of status through U.S. Citizenship and Immigration Services while they remain here.  Similarly, foreign students in F-1 student status seeking to change to H-1B status this summer by taking advantage of the “H-1B cap gap” remain unaffected.  Further, subject to the restrictions to visa issuance and travel already in place due to COVID-19,  foreign nationals who were present in the United States with valid visas  on June 24, 2020, should be able to apply for visa extensions/renewals, or to change their status to H-1B, H-2B, H-4, J-1, J-2, L-1 and L-2 or another visa at a U.S. embassy or consulate abroad.

    Luckily for the technology companies who are responsible for the vast majority of H-1B petitions each year, the foreign students whom they might now be employing pursuant to Optional Practical Training (OPT) permitted for those in F-1 student status will be unaffected, because those students are in the United States now.   

    Finally, foreign nationals outside the United States who seek to obtain a visa and enter the United States in a nonimmigrant visa category not restricted by the Proclamation (for example, B, E, F, H-2A, O, P or TN visas) remain unaffected.

    Summary

    As a practical matter, therefore, foreign nationals in the United States on June 24, 2020, the effective date of the Proclamation, will be unaffected by the Proclamation.  Similarly, foreign nationals outside the United States on June 24, 2020, who are applying for a visa other than an H-1B, H-2B, H-4, J-1, J-2, L-1 or L-2 visa, will also be unaffected by this week’s Proclamation.  However, foreign nationals outside the United States on June 24, 2020, who were intending to come to the United States temporarily to work pursuant to one of the restricted visa categories, will not be able to obtain the desired visa unless they can show that they qualify for one of the described exemptions. The suspension of visas under the President’s Proclamation of June 22, 2020, will terminate on December 31, 2020, unless modified before then.

    COVID-19 is  a  moving target.  The Immigration world is constantly changing as a result.  Legal issues are arising daily.  Rest assured that we at GrayRobinson are closely monitoring the impact of the pandemic and are responding to all  immigration and other issues affecting our clients as they arise.  We are here to help; let us know if you need us.

     


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