US Travel Ban Extended & Expanded
Another day, another Proclamation.
On June 22, 2020, President Trump signed an Executive Order expanding restrictions on immigration into the United States.
The order extends the existing temporary travel ban issued on April 22, 2020 that suspended certain green card applications and imposes new restrictions on highly skilled workers, their dependents and several nonimmigrant visa categories.
Who is affected by the new travel and entry restrictions?
The extended suspension applies to non-US nationals outside the US on June 24, 2020 who are not in possession of a valid:
- H-1B visa;
- H-2B visa;
- L-1A executive manager visa;
- L-1B specialized knowledge worker visa;
- J-1 visa (interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants);
- H-4, L-2 and J-2 accompanying dependent visas; or
- official travel document other than a visa
that is valid on June 24, 2020.
The Proclamation suspends visa issuance to any visa applicants who meet these criteria.
Are there any exceptions to the new ban?
The suspension does not apply to individuals already in the US.
Non-US nationals already in the US can continue to make USCIS applications, such as extending a valid visa, to maintain their lawful status.
The ban affects only those outside the US who are seeking to enter the country under the above visa categories, with the following exemptions:
- Foreign nationals outside the United States with a valid nonimmigrant visa issued on or before June 24, 2020
- Foreign nationals outside the United States who possess Advance Parole or Travel Document granting advanced permission to enter the US
- US lawful permanent residents Foreign nationals who are the spouses or children of US citizens
- Foreign nationals seeking to enter the US to provide temporary labor or services that are essential to the US food supply chain
- J-1 exchange program participants other than interns, trainees, teachers, camp counselors, au pairs and summer work travel participants; and
- Workers whose services are deemed critical for the health, safety, and wellbeing of the American public or a national interest.
Foreign nationals may be eligible to seek a waiver to become exempt from the ban. A waiver procedure is expected to be developed by the State Department and Departments of Labor and Homeland Security. Petitions are to be discretionary and decided on a case-by-case basis.
The Proclamation is separate from Embassy and Consulate closures and COVID-19 related restrictions on travel to the US from certain countries, which continue to remain in effect. However, even where Embassies and Consulates reopen prior to December 31, 2020, H-1B, H-2B, L-1 or J-1 (and H-4, L-2, and J-2) visas can not be issued, unless the applicant falls under one of the above exceptions.
Note that non-US travellers who are exempt from the Proclamation remain subject to other emergency pandemic measures and restrictions. Professional advice should be sought to confirm eligibility to travel.
Canadian passport holders
Visa-exempt Canadians are safe from the restrictions and those with a valid visa issued prior to June 24, 2020 can enter the USA, even if they have never entered on that visa before.
Legal challenge
Lawsuits challenging the validity of the Order are expected to follow with litigation arguing that the Proclamation violates federal immigration and administrative laws.
Implications for US employers
This latest Order imposes further restrictions on the movement of foreign national employees into the United States which is likely to have substantial implications for US employers relying on access to highly skilled foreign national workers.
Impact on green card or H-1B eligibility
While the Proclamation does not impose immediate changes to green card or H-1B eligibility, it does instruct the Department of Labor and the Department of Homeland Security to review the EB-2 and EB-3 immigrant visa classifications and the H-1B visa to ensure the classifications and allocation of immigrant visas do not disadvantage United States workers.
This could impact the H-1B category in several ways by, for example, resulting in more stringent H-1B eligibility criteria and wage obligations alter the H-1B quota allocation.
Guidance for US employers
Employers will be forced to assess workforce planning, recruitment and global mobility programs in light of these changes to US immigration.
With this latest ban in place until the end of 2020, non-US nationals with plans to enter the United States to begin work in H-1B, H-2B, L-1 or J-1 status, as well as their accompanying or joining dependents, may be unable to do so until the ban expires, unless they are sponsored for and obtain a waiver of the entry restrictions, or unless the ban is enjoined by a court.
This may require shifting approach and perspective by giving consideration to alternative immigration options, such as the E-2 visa route which has not been impacted by the travel ban. In particular, the prospects for E-2 applicants are notably more encouraging as these are considered as job creation visas.
Employers are also advised to be proactive in engaging with existing non-US national workers on the policy changes and how these may impact their ability to travel and enter the US.
Employees with an expired visa stamp should avoid travel out of the US wherever possible for the period of the Proclamation (currently until the end of 2020). Where international travel is essential, take professional advice on how to deal with the expired visa.
Keeping lines of communication open and information flowing will help to avoid problems developing in light of the increased travel restrictions.
This includes providing specific support to your employees in the US with nonimmigrant work authorization that will expire within the next six months. Due to concerns about processing backlogs and to maintain lawful status, it is advisable to file extension petitions with the USCIS as soon as possible.
Likewise, any eligible employees considering applying for a green card, such as the EB-2 or EB-3 immigrant petition, should proceed with their application as soon as they can give the protracted processing timescales.
US immigration advice
NNU Immigration is actively monitoring the impact of the pandemic on US immigration policy and application processing.
As the situation continues to develop, please contact our US immigration specialists for the latest advice for your specific circumstances.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: June 24, 2020
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
