Temporary ban on certain non-immigrants to the US: what you need to know

On June 22, President Trump issued the Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak that suspends the entry of foreign nationals with certain employment-based non-immigrant visas into the United States. 

This proclamation also extends, effective immediately, the presidential proclamation issued on April 22, 2020, which suspended the entry of certain immigrants into the United States.  

The proclamation took effect at 12:01 a.m. EDT on June 24, 2020, and will remain in effect until December 31, 2020, but is subject to extension or modification. 

Who is subject to the non-immigrant ban?

The proclamation suspends the entry of foreign nationals seeking admission to the US pursuant to any of the following non-immigrant visas: 

• H-1B visa.
• H-2B visa.
• J-1 visa (but only those participating in an intern, a trainee, a teacher, a camp counsellor, an au pair or a summer work travel program).
• L-1 visa ( L-1A and L-1B visa).
• Any dependent (spouse and children) who is accompanying or following the principal foreign national who is seeking entry pursuant to one of the visas listed above.

Suspension and limitation on entry

The proclamation will only apply to foreign nationals identified above who:  

• Are outside the United States on the effective date of the proclamation; 
• Do not have a non-immigrant visa that is valid on the effective date of the proclamation; and
• 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 thereafter permitting the foreign national to enter or be admitted to the United States. 

In other words, the following individuals should not be affected by the proclamation:

• Foreign nationals who are already in the US with a valid visa on the effective date of the proclamation. 
• Foreign nationals who are already in the US with a valid visa and have applied to change or extend their H-1B, H-2B, L-1A, L-1B or J-1 status. 
• Foreign nationals who are outside of the US with a valid visa issued prior to the effective date of the proclamation. 
• J-1 exchange program participants other than intern, trainee, teacher, camp counsellor, au pair or summer work travel program participants.
• Foreign nationals with visas in other non-immigrant employment categories such as TN, E-1 treaty traders, E-2 treaty investors, O-1 extraordinary ability and P-1 performers.  

Exemptions

The proclamation exempts the following individuals from the non-immigrant ban: 

• Lawful permanent residents (i.e., green card holders);
• Spouse or child of a US citizen (but not the spouse or child of a lawful permanent resident);
• An individual seeking entry to provide temporary labour to the US food supply chain;
• Any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees. 

The Secretary of State, Secretary of Labor, and Secretary of Homeland Security will establish standards to define categories of foreign nationals who are entitled to a national interest exemption, including any foreign nationals who are:

• Critical to the defense, law enforcement, diplomacy or national security of the United States;
• Involved with providing medical care to individuals who have contracted COVID-19 and are hospitalized;
• Involved with providing medical research at US facilities to help the United States combat COVID-19; 
• Necessary to facilitate the immediate and continued economic recovery of the United States; or
• Children who would age out of their eligibility for a visa because of this proclamation or the April 22 proclamation.

Consular officers will decide on a case-by-case basis whether a foreign national qualifies for a national interest exemption. 

Does the proclamation apply to Canadian citizens?

No. Canadians entering the United States are exempt from the proclamation. Canadian citizens do not require a visa to work in the US as H, L or J non-immigrants (their petitions for H, L or J status must be approved, but they do not need to apply for a visa at a US consulate). 

Extension of the immigrant entry ban

The April 22 proclamation banning the entry of certain immigrants to the US was set to expire on June 22, 2020, but the ban has now been extended until December 31, 2020, and remains subject to further extension. 

A summary of the proclamation temporarily banning immigrant entry into the US can be found here.  

Additional measures

The proclamation also contains the following additional measures:

• It requires the Secretary of Health and Human Services to provide guidance for implementing measures that could reduce the risk that foreign nationals who want to enter the US spread COVID-19 within the US. A possible measure could be mandatory COVID-19 testing prior to travelling to the US or upon arrival. 
• It requires the Secretary of Labor to develop regulations or take other appropriate action to ensure foreign nationals who are already in the United States or are seeking to enter the United States pursuant to an EB-2 or EB-3 immigrant visa or an H-1B non-immigrant visa do not disadvantage US workers. Possible regulations or actions could include more stringent H-1B eligibility criteria and wage obligations, a significantly higher H-1B filing fee to dissuade employers from employing H-1B applicants; or tougher labour certification standards for EB-2 and EB-3 immigrant visa applicants. 

• It requires the Secretary of Homeland Security:
  • to take appropriate action to prevent a foreign national from applying for a visa, entering the United States, or obtaining some other benefit until the individual has been registered with biographical and biometric information (including photographs, signatures, and fingerprints).  
  • to take steps to prevent certain foreign nationals who have final orders of removal; who are inadmissible/deportable from the United States; or who have been arrested, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States. 
  • to consider drafting regulations or taking other appropriate action regarding the efficient allocation of visas to ensure the presence of H-1B non-immigrants in the United States does not disadvantage US workers

What does this mean for employers?

Foreign nationals other than Canadian citizens who planned to enter the US to begin working in H-1B, H-2B, L-1 or J-1 status, as well as their accompanying or joining spouses and dependent children, may be unable to do so until the ban expires.

Though the proclamation should not affect foreign nationals who are currently in the United States or already hold valid visas, future regulations could make it more difficult for these individuals to change or extend H-1B status or be sponsored by their employers for permanent residence in the EB-2 and EB-3 categories.