On Monday, June 22, President Trump issued a proclamation effective on midnight June 24, 2020, suspending the entry of H-1B, L-1, and J-1 visa applicants, and extending the existing suspension of entry of immigrant applicants until December 31, 2020.
Who is Affected?
The suspension applies only to applicants who:
- Are outside of the United States on June 24, 2020; and
- Do not have a nonimmigrant visa that is valid on June 24, 2020; or
- Do not have an official travel document that is valid on June 24, 2020 or issued on any date thereafter that permits him or her to travel to the United States.
Who is NOT Affected?
- Visa holders already in the United States are not affected by this order.
- Foreign nationals who already have a valid visa are not affected by this proclamation.
- The E visa category is not mentioned in the proclamation.
- The suspension also does not apply to Lawful Permanent Residents, spouses and children of U.S. citizens, applicants whose work is essential to the U.S. food supply chain, and others whose entry is in the national interest (i.e., aliens critical to defense, law enforcement, diplomacy or national security; aliens involved in COVID-19 related medical care or COVID-19 related medical research; or aliens who are necessary to help with economic recovery).
Extension of April 22, 2020 Proclamation
Furthermore, this proclamation extends a previous proclamation (dated April 22, 2020) suspending the entry of immigrant visa (“green card”) applicants. For a full discussion of this prior proclamation, see our article here.
Are Additional Restrictions for Those in the U.S. Possible in the Future?
Yes. The proclamation also orders the Secretary of Labor to consider issuing regulations or other actions to ensure that the presence of aliens who have been admitted to the United States or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa, does not “disadvantage” United States workers. It is not clear at this point how and when new regulations will be promulgated or what they will contain.
Here are some answers to frequently asked questions:
Q: What does the proclamation really mean?
A: It bans issuance of new visas at U.S. Embassies outside the U.S. for H-1B, L-1A, L-1B, J-1 visas and their dependents. It does not apply to anyone already in the U.S. It also does not apply to E visas, F-1 visas, or O-1 visas.
Foreign Nationals in the U.S.
Q: I currently have one of the following visas (H-1B, L-1A, L-1B, J-1 or their dependents) and I am in the UNITED STATES. My non-immigrant visa is still valid. Can I travel and return to the U.S.?
Q: I am currently in the U.S. in one of the above categories of visas in lawful status. Can I stay? My I-94 is still valid.
A: YES. you can stay in the United States. If your I-94 is expiring within 6 months, we recommend that you extend while staying in the United States, with USCIS, if possible.
Q: I am in the U.S. in H-1B, L-1A, L-1B, J-1 or their dependents, and my nonimmigrant visa stamp is about to expire. How can I renew my visa stamp?
A: We recommend you extend your nonimmigrant status by filing an extension application with USCIS in the U.S. and continue to stay in the U.S. If you need to leave the U.S., you WILL NOT BE ALLOWED TO RE-ENTER THE U.S. unless you obtain a new visa stamp. For the above categories, the U.S. Embassies abroad will NOT issue you a new visa stamp, UNLESS YOU FALL UNDER ONE OF THE EXEMPTIONS explained below.
Q: I currently hold a valid E, O-1, F-1, B-1, B-2, E-3, K-1, K-3, M-1, P, Q, or R visa and I am in the U.S. Does this proclamation affect me?
Foreign Nationals Outside the U.S.
Q: I am outside the U.S. but I’ve already been issued my nonimmigrant visa stamp in my passport. I was planning on going to the U.S. next month. Can I go to the U.S.?
A: YES. The entry ban does not apply to anyone who already has a valid visa stamp, as long as it was issued before 6/24/20. You CAN GO TO THE U.S. As always, please be prepared to fully explain your situation at the port of entry.
Q: I am outside the U.S. and am waiting for my scheduled interview for a restricted nonimmigrant visa? Will my interview be cancelled now?
A: Maybe. We don’t know yet, but if your interview is NOT cancelled, we believe that you should cancel your interview UNLESS you meet one of the listed exceptions and can clearly PROVE you meet them. The reason for this is that we believe that if you don’t meet the exception, the U.S. Embassy will deny your case, and if you are from an ESTA country, you may be barred from using ESTA in the future.
The Proclamation orders Department of State and USCIS to issue specific standards and further guidance. Once we receive these, we will update with additional information as soon as possible.
Q: I am outside the U.S. and was waiting for an interview slot for a H-1B, L-1A, L-1B, J-1 or their dependents visa. Can I apply for another visa type category instead, like an E?
A: (for Japanese nationals) If you qualify for an E visa and if your company has already registered as an E visa company with the U.S. Embassy in Japan, you should consider switching to an E visa since the E visa is NOT part of the ban.
Q: I am applying for E, O-1, F-1, B-1, B-2, E-3, K-1, K-3, M-1, P, Q, or R visa, and I am outside of the U.S. Can I apply for one of these visas at a U.S. embassy?
A: Yes. The proclamation doesn’t affect you. That being said, you must be able to have an interview at a U.S. Embassy. Currently, other than emergency appointments, the U.S. Embassies around the world are closed. Once they open, you can apply.
Q: If I have a pending H-1B cap petition, does the Proclamation affect me?
A: If you are already in the U.S. in another status (like F-1) and requested change of status, then your status will be automatically updated to H-1B once your petition is approved or on 10/1/20, whichever is later. But you cannot travel internationally unless you are able to convince a consular officer that you meet one of the exemptions.
Also, if you are outside the U.S. waiting for H-1B approval, you are subject to the ban and cannot enter the U.S. unless the consulate accepts an emergency appointment AND they accept your explanation for an exemption. For the vast majority of H-1B applicants, we believe that you will not be able to enter the United States at least until 2021, if not longer. We will update with additional information as soon as we can.
Q: Are L-1 blanket visa applications at the U.S. Embassies also suspended until end of 2020?
A: Yes. There does not seem to be any distinction made for applications made under a blanket program. All L visas are suspended. If you feel that you qualify for an exemption, you may want to try to obtain an emergency interview with an explanation of the exemption.
Q: I am in the U.S. under L-1 blanket status, and I was planning on traveling abroad to renew my blanket status as my PED is about to expire. I have a valid L-1 visa stamp. How can I extend my status?
A: Since you have a valid visa stamp, you can travel. At this point, there has been no clarification with respect to whether the U.S. Embassy will interview you to issue a new I-129S with an extended PED. The best solution if YOU ARE in the United States, is to apply for an extension application with USCIS in the U.S. instead.
Q: Do any of the exceptions listed in the Proclamation (i.e., entry would be in the “national interest” or facilitate “continued economic recovery”) apply to me?
A: The exceptions are if you are:
- critical to defense, law enforcement, diplomacy, or national security of the US;
- involved with provision of medical care to patients who contracted Covid-19;
- involved with medical research at U.S. facilities to combat Covid-19; or
- “necessary to facilitate the immediate and continued economic recovery of the U.S.”
For the vast majority of our clients, we believe that the most common exception will be the last one regarding aliens necessary to facilitate the immediate and continued economic recovery of the U.S.
Q: How can I apply for the exception?
A: (For Japan) At this point, the U.S. Embassies are closed for regular business. If someone wants to obtain an INTERVIEW FOR ANY TYPE OF VISA, you must contact the Embassy and ask for an emergency interview. The criteria for obtaining an emergency interview is similar to the last exception. However, in Japan, emergency interviews seem to be scheduled very liberally. We don’t believe this will be the case for the exception listed above, however.
Each consular officer and or section will have the right to unilaterally decide on whether a foreign national meets the exception. At this point, we believe that if a client wishes to schedule an emergency appointment for a restricted visa, they should contact the U.S. Embassy, request both an emergency appointment AND an exception adjudication.
If the appointment and adjudication is DENIED, you won’t have a denial of a visa since there is no interview. However, if you are accorded an interview and then denied, it will count as a visa denial; thus, most likely barring you from using ESTA in the future.
Inasmuch as we lack any information about adjudication standards, our current opinion is NOT based on any instructions from the U.S. Embassy. As soon as we receive an update, we will update our FAQ’s.
Q: I have an emergency appointment scheduled for a restricted nonimmigrant visa. Does my claim that without my presence in the U.S., our company will lose millions of dollars fit within the exception of my entry would support “continued economic recovery”? What will happen to my emergency interview appointment?
A: The consular officer has discretion to make this determination on a case by case basis. As noted above Proclamation orders Department of State and USCIS to issue specific standards and additional clarification defining these categories. Please contact SWLG to discuss the specifics.