Executive Order Temporarily Suspends Entry of Certain H-1B, L-1, H-2B and J-1 Employees

Category: COVID-19 Legal Resource Guide
Date: June 22, 2020
Title: Executive Order Temporarily Suspends Entry of Certain H-1B, L-1, H-2B and J-1 Employees

As anticipated, President Donald Trump signed a presidential proclamation temporarily suspending, through the end of the year, the entry to the United States of certain temporary work visa holders. The proclamation is effective Wednesday, June 24, at 12:01 a.m. ET.

Specifically, the proclamation suspends the entry of H-1B, L-1, H-2B and J-1 visa holders and their dependents (H-4s, J-2s and L-2s). Importantly, the proclamation applies only to individuals who:

(i) Are outside the United States on the effective date of the proclamation;

(ii) Do not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii) Do not have an official travel document other than a visa (such as an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.

To be subject to the entry ban, a foreign national must meet all three prongs. In other words, the proclamation does not apply to H, L or J visa holders who are physically in the United States on June 24. (It would be wise for those who are here to collect evidence of their physical presence on June 24 for possible future use. This may include a receipt from a credit card purchase or an in-person banking transaction, etc.) Nor does it apply to individuals outside the United States who possess a visa or travel document valid on June 24. Foreign nationals who don’t meet any one of the three prongs may seek entry to the United States and, if necessary, apply for a renewal of their visa at a U.S. consulate abroad.

Interestingly, given the way the proclamation was drafted, an individual who has any visa (including an F-1 (student), B-2 (tourist) or B-1 (business visitor)) valid on June 24 who subsequently applies for an H or L visa would not meet the second prong of the test and would be free to seek entry to the United States on that newly issued H or L visa.

It is also important to note that this proclamation does not cover those who have or will be seeking O, E or Mexican TN visas. Similarly, Canadians seeking TN status are not subject to the proclamation.

The following individuals are also exempt:

(i) Lawful permanent residents of the United States;

(ii) Spouses and children (please note, we believe this is a drafting error and the president meant “parents”; we assume this will be clarified in the coming days) of U.S. citizens;

(iii) Foreign nationals seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain; and

(iv) Any foreign national whose entry would be in the national interest (such as those working on national security matters or COVID-19-related research).

The proclamation also extends through the end of the year the previous ban on entry to the United States of certain immigrants (permanent resident applicants) who are currently outside the United States and who do not yet have a valid immigrant visa or other travel document (such as an advance parole document). The suspension does not apply to individuals applying for permanent residence from within the United States (adjustment-of-status applicants).

This proclamation will expire on Dec. 31, and may be extended. We will alert you immediately if the administration issues any clarifications or further details.

We also wish to remind you that as of today all other COVID-19 bans on entry to the United States (covered in our earlier alerts) remain in effect.

If you have any questions, please contact any of the lawyers in our Business Immigration group.