United States: Answers To Frequently Asked Questions About The June 22, 2020 Presidential Proclamation Suspending Entry Into The U.S. Of Certain Immigrants And Nonimmigrants

President Trump issued a Proclamation on June 22, 2020, that extended a prior proclamation, preventing foreign nationals issued immigrant visas on or after April 24, 2020 from using these visas to enter the U.S. In addition, the June 22, 2020 Presidential Proclamation prevents foreign nationals from being issued H-1B, H-2B, L-1, or certain J-1 visas on or after June 24, 2020. There are some exceptions. For instance, the Proclamation does not apply to U.S. citizens, Green Card holders, spouses and children of U.S. citizens, foreign nationals entering the U.S. to assist with COVID-19 healthcare matters, activities related to the U.S. food supply chain, as well as activities deemed to be in the U.S. national interest. As a result, many foreign nationals have questions as to how the Proclamation may impact them. This writing will try to provide answers to frequently asked questions resulting from the June 22, 2020 Presidential Proclamation.

Which visas are affected by the June 22, 2020 Presidential Proclamation?

The Proclamation extends an April 22, 2020 proclamation suspending the ability of foreign nationals outside the U.S. to use immigrant visas issued on or after April 24, 2020, from entering the U.S. The Proclamation also suspends the ability of foreign nationals who are outside the U.S. from using H-1B, H-2B, L-1, and certain J-1 visas issued on or after June 24, 2020, from entering the U.S. Those foreign nationals who do not have an H-1B, H-2B, L-1, or certain J-1 visas will not be able to apply for one, unless an exception applies to their case, as described above. (Note: The June 22, 2020 Presidential Proclamation does not apply to the B-1 or B-2 visa categories or the Electronic System for Travel Authorization (ESTA) program. It does not apply to the F-1 visa category. It does not apply to the O-1, E-1, E-2, E-3, H-1B1, or TN nonimmigrant employment-based work visa categories either.)

When is the June 22, 2020 Presidential Proclamation to take effect and how long will it be in effect?

The June 22, 2020 Presidential Proclamation took effect on June 24, 2020, and will expire on December 31, 2020. However, the Proclamation has a provision in it that indicates it may be extended, as needed.

If a foreign national is currently in the U.S. in valid H-1B, H-2B, L-1 or J-1 status, will the foreign national be able to remain in the U.S.?

Yes. A foreign national inside the U.S. in valid H-1B, H-2B, L-1, or J-1 nonimmigrant status will be able to have their employer extend their status in the U.S. with the U.S. Citizenship and Immigration Services (USCIS). These foreign nationals may also have amended petitions filed on their behalf with USCIS. In some cases, these foreign nationals may have a change of employer petition filed on their behalf with USCIS. Dependent family members will also be able to extend their derivative status while in the U.S.

If a foreign national has a valid H-1B, H-1B1, L-1 or J-1 visa, and the foreign national is outside of the U.S., can the foreign national use the visa to enter the U.S.?

It depends. If the foreign national was issued an H-1B, H-2B, L-1, or J-1 visa prior to June 24, 2020, and the nonimmigrant visa is still valid at the time of presentment to a U.S. Customs and Border Protection (CBP) officer, the visa may be used to enter the U.S. The same applies to dependent family members with valid derivative nonimmigrant visa types. (Note: Government officials have also indicated that as long as the visa was issued before June 24, 2020, and is valid at the time of inspection/admission, the visa may be used to enter the U.S., even if the visa was never used to enter the U.S. in the past.)

Which J visa are subject to the June 22, 2020 Presidential Proclamation?

J visa holders who wish to participate in the Intern, Trainee, Teacher, Camp Counselor, Au Pair, or Summer Work Travel programs, and any foreign national accompanying or following to join such a foreign national, are subject to the June 22, 2020 Presidential Proclamation.

If an H-1B, H2B, L-1, or J-1 visa application was in process with the Department of State (DOS) at the time the June 22, 2020 Presidential Proclamation took effect on June 24, 2020, will the visa still be issued?

Based on guidance from the U.S. Department of State (DOS), unless an exception applies, no H-1B, H-1B, L-1 or J-1 visas will be issued if the visa application is still in process at the time the June 22, 2020 Presidential Proclamation was issued. Even if the visa is issued, if issued on or after June 24, 2020, unless it was based on one of the exceptions within the Proclamation, the foreign national would not be able to use the H-1B, H-2B, L-1, or J-1 visa to enter the U.S.

If a foreign national is in the U.S. in valid H-1B, H-2B, L-1, or J-1 status, and would like to depart the U.S., but does not have a valid nonimmigrant visa in one of the above categories, may the foreign national depart the U.S. to apply for an H-1B, H-2B, L-1, or J-1 nonimmigrant visa, or should a foreign national in one of these categories refrain from travel outside of the U.S. until the Presidential Proclamation is lifted?

It is recommended that foreign nationals in valid H-1B, H-2B, L-1, or J-1 status in the U.S., who do not possess a valid H-1B, H-2B, L-1 or J-1 visa not depart the U.S. Foreign nationals in these categories who depart the U.S., and do not have a valid nonimmigrant visa at the time of departure will not be able to apply for one of these nonimmigrant visas at a U.S. embassy or consulate overseas, unless one of the exceptions listed in the Presidential Proclamation applies, based on current U.S. Department of State (DOS) guidance. In addition, routine visa processing is still suspended at U.S. embassies and consulates as a result of the COVID-19 pandemic. It is difficult to contact consular officials for a determination to be made as to whether one of the exceptions may be applicable. As a result, it is recommended that foreign nationals in H-1B, H-1B1, L-1 or J-1 status in the U.S. not depart the U.S. during the validity of Proclamation, since there is a risk the foreign national may not be able to secure a visa to return to the U.S. between now and December 31, 2020. Moreover, with the uncertainty as to whether the COVID-19 pandemic may surge in the coming months, and whether the Proclamation may be extended, it is strongly recommended that foreign nationals in any valid nonimmigrant status in the U.S. refrain from traveling outside of the U.S.

If a foreign national was outside the U.S. at the time of the COVID-19 pandemic and has a valid approved H-1B or L-1 petition, but not a valid visa, will the foreign national need to wait for the Presidential Proclamation to be lifted in order to be able to apply for and be issued an H-1B or L-1 visa?

Yes. Based on the language in the Proclamation, the foreign national would need to wait until the June 22, 2020 Presidential Proclamation is lifted in order to be eligible to apply for an H-1B or L-1 visa, unless one of the exceptions described in the Proclamation applies.

If a foreign national is not able to obtain an H-1B, H-2B, L-1, or J-1 visa as a result of the June 22, 2020 Presidential Proclamation, are there other nonimmigrant visas that a foreign national may apply for to try to travel to the U.S.?

Yes. As indicated above, the June 22, 2020 Presidential Proclamation does not apply to the B-1 or B-2 visa categories or the Electronic System for Travel Authorization (ESTA) program used by certain eligible foreign nationals to visit the U.S. (Note: Foreign nationals may not enter the U.S. on a B-1, B-2 or through the ESTA program to engage in employment.) The June 22, 2020 Presidential Proclamation does not apply to the F-1 visa category. It does not apply to the O-1, E-1, E-2, E-3, H-1B1, or TN nonimmigrant employment-based work visa categories either.

Does the June 22, 2020 Presidential Proclamation prevent foreign nationals, who are inside the U.S. in valid H-1B, H-2B, L-1, or J-1 status, from having their nonimmigrant status extended?

No. As indicated above, foreign nationals inside the U.S. in valid H-1B, H-2B, L-1, or J-1 status may be eligible to have their nonimmigrant status extended while inside the U.S.

Does the June 22, 2020 Presidential Proclamation prevent foreign nationals, who are inside the U.S. in valid H-1B, H-2B, L-1, or J-1 status, from having an amended petition or change of employer petition filed on their behalf?

Yes. As indicated above, a foreign national inside the U.S. in valid H-1B, H-2B, L-1, or J-1 status may be eligible to have an amended petition filed on their behalf or a change of employer petition filed on their behalf.

If a foreign national is the beneficiary of an approved H-1B cap petition for the 2021 Fiscal Year (FY) (October 1, 2020 to September 30, 2021) with an October 1, 2020 start date, and is currently outside of the U.S., will the foreign national be able to apply for an H-1B visa and use it to enter the U.S. in order to begin work on October 1, 2020 or soon thereafter?

No. Based on current U.S. Department of State (DOS) guidance, a foreign national who is the beneficiary of an approved FY2021 H-1B cap petition, who is currently outside of the U.S. will have to wait until the June 22, 2020 Presidential Proclamation is lifted before being eligible to apply for an H-1B visa, unless one of the exceptions applies.

If a foreign national is the beneficiary of an FY2021 H-1B cap petition and was inside the U.S. in another nonimmigrant status at the time of the filing of the H-1B cap petition, and the H-1B cap petition contained a change of status request, and the change of status request is granted with an effective date of October 1, 2020, may the foreign national begin employment for the sponsoring employer on October 1, 2020 in H-1B status?

Yes. The June 22, 2020 Presidential Proclamation does not impact the H-1B beneficiary in this example. A foreign national who is the beneficiary of a FY 2021 H-1B cap petition, and who has been granted a change of status to the H-1B category, and has remained inside the U.S., may begin work on October 1, 2020.

If a foreign national is currently outside of the U.S., and has a valid H-1B, H-2B, L-1, or J-1 visa issued prior to the June 22, 2020 Presidential Proclamation, may the foreign national use that visa to enter the U.S., even if the foreign national never used the visa to enter the U.S.?

Yes. A foreign national outside of the U.S. who has a valid H-1B, H-2B, L-1 or J-1 visa issued prior to the June 22, 2020 Presidential Proclamation, may still be able to use the visa to enter the U.S., even if the foreign national has never used the visa to the enter the U.S. in the past, provided the terms and conditions the visa was based continue to exist.

Does the June 22, 2020 Presidential Proclamation prevent a foreign national in valid nonimmigrant status in the U.S. from filing an Application to Register Permanent Residence or Adjust Status (Form I-485)?

No. The Proclamation does not prevent a foreign national in valid nonimmigrant status from filing a Form I-485 application in the U.S. in order to try to adjust their status to that of a U.S. lawful permanent resident. In addition, the Proclamation does not prevent a foreign national inside the U.S. from filing an Application for Employment Authorization (Form I-765) or an Application for Travel Document (Form I-131).

What are some of the exceptions to the June 22, 2020 Presidential Proclamation?

The June 22, 2020 Presidential Proclamation does not apply to the following:

• S. citizens;
• S. lawful permanent residents;
• Spouses and children of a U.S. citizens;
• Foreign nationals in need of an H-1B, H-2B, L-1, or J-1 visa to enter the U.S. to provide services essential to the U.S. food supply chain;
• Foreign nationals in need of an H-1B, H-2B, L-1, or J-1 visa to provide services related to combating COVID-19;
• Foreign nationals in need of an H-1B, H-2B, L-1, or J-1 visa to provide services that are deemed to be in the U.S. national interest.

Who is covered under the "national interest" exemption of the Proclamation?

The Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine the standards for those whom a national interest exemption would be available, and would include the following:

• Foreign nationals who are critical to the defense, law enforcement, diplomacy, or national security of the United States;
• Foreign nationals who are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• Foreign nationals who are involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19;
• Foreign nationals who are necessary to facilitate the immediate and continued economic recovery of the United States; or
• Foreign nationals who are children who would age out of eligibility for a visa, because of the Proclamation.

Does the June 22, 2020 Presidential Proclamation suspend all visa processing at U.S. embassies and consulates around the world?

No. The Proclamation does not suspend all visa processing. However, as a result of the COVID-19 pandemic, the U.S. Department of State (DOS) has made the decision to continue to suspend routine visa processing at all U.S. embassies and consulates around the world until further notice.

Please note that the White House did amend the June 22, 2020 Presidential Proclamation on June 29, 2020 to provide greater clarity in highlighting the specific nonimmigrant categories (H-1B, H-2B, L-1, and J-1 categories) the Proclamation is applicable. It is possible that further guidance may be issued by the White House, U.S. Department of State (DOS) or Department of Homeland Security (DHS) in the coming days, which provides more information or clarity with respect to how the Proclamation should be applied to a particular foreign national and/or fact patterns. Our office will continue to monitor and provide updates as information becomes available.

If you have any questions or would like to discuss the June 22, 2020 Presidential Proclamation in more detail, please contact our office at 248-643-4900.

Originally published 01 July, 2020

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