Presidential Proclamation Suspends Certain H-1 and L-1 Workers from Entering the US in 2020 | Chugh LLP

Presidential Proclamation Suspends Certain H-1 and L-1 Workers from Entering the US in 2020

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By: Navneet Chugh, Diya Mathews, Min Kim, and Malou Mararang

On June 22, 2020 President Trump issued a presidential proclamation extending the earlier April 2020 proclamation which suspends H-1, L-1, certain prospective J visa holders, and their dependents who are outside of the United States from entering or seeking admission into the country between June 24, 2020 to December 31, 2020.

Who cannot come to the united states for the rest of this year?

The suspension applies to new nonimmigrant visa applications and does not affect those who are already lawfully in the United States and applying for extension of status.

The following categories of nonimmigrants cannot enter the United States if they are outside of the country on the proclamation’s effective date of June 24, 2020 and do not already hold a US visa or other travel document that is valid on that date:

  • H-1B specialty occupation workers and H-4 dependents
  • L-1 intra-company transferees and L-2 dependents
  • J-1 exchange program workers and J-2 dependents
  • H-2B seasonal, non-agricultural workers 

proclamation only applies to people outside of the united states

The proclamation only impacts individuals who meet all the following three requirements:

  • Outside the United States on June 24, 2020
  • Do not already hold a nonimmigrant US visa valid on the effective date of the proclamation
  • Do not hold any official travel document, such as a transportation letter, boarding foil, or advance parole document. Such documents are rarely used by nonimmigrant visa holders in the affected categories.

These presidential proclamations only impact visa applications filed with US consulates abroad.

If you have a valid visa issued before June 24, 2020, you can still travel from a foreign country into the United States. We also believe that the proclamation does not bar individuals with approved and unexpired H-1B or L-1 visa stamps in their passports from traveling abroad. However, to err on the side of caution, we recommend that these visa holders refrain from international travel.

If a foreign national does not have an H-1B visa foil/sticker or an L-1 visa foil or sticker in their passport, they cannot secure one until 2021.

Immigrants that are not Impacted by the Proclamation

The proclamation does not impact the following categories of individuals:

  • Legal permanent residents (green card holders)
  • Spouses or children of US citizens
  • Temporary workers who will work in the US food supply chain
  • People whose entry is in the national interest (determined by the Secretaries of State or Homeland Security), which may include those that are involved with:
    • US defense
    • National security
    • Law enforcement
    • Providing medical care to people with COVID-19
    • US economic recovery
  • People seeking asylum, refugee status, withholding of removal, or similar protection under US law
  • Canadian citizens

Consular officers will have discretion to determine whether a nonimmigrant should be granted an exception in one of the above categories.

Can I Continue Filing for Impacted Visa Categories?

Employers can continue filing new H-1 and transfer petitions, and L-1 petitions. These visa beneficiaries can only travel to the US at the earliest by 2021 if they are outside of the country when the petition is filed.

Additionally, employers can still file for change of status from Optional Practical Training (OPT) to H-1, since international students working on OPT are not impacted by the proclamation. Employers can also continue filing green card PERM applications.

How Long are these Restrictions in Place?

The proclamation will expire on December 31, 2020 and may be extended. Every 60 days, and within 30 days of June 24, 2020, the Secretary of Homeland Security will reevaluate the proclamation and modify policy as it deems necessary.

The proclamation also mandates the Secretaries of Labor and Homeland Security to issue regulations and take steps to ensure that H-1B nonimmigrants and certain green card holders (EB-2 and EB-3) do not disadvantage US workers.

How Bad is This Proclamation?

The proclamation will make it difficult for companies that depend on the inflow of work visa holders to sustain their businesses. However, its impact may be more limited for the following reasons:

  • There are limited flights arriving in the US in the near future.
  • For many US consulates around the world, the next available appointment for a new visa interview is in 2021.
  • Most businesses in the US are not asking new nonimmigrant visa holders to come to the United States due to the pandemic. Instead, they are focused on keeping their current staff employed, and are in some cases sending some employees back to their home countries.

We expect more clarification from the US government in the next few days. There may be challenges to the presidential proclamation filed in US federal courts, and it could also be suspended, or stayed.

Conclusion

For more information about how the proclamation impacts your or an employee’s visa, please schedule a consultation with one of our experienced Chugh, LLP immigration attorneys by contacting info@chugh.com.

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