President Trump Amends Nonimmigrant Proclamation to Narrow Exemption for Visa Holders

The issue

President Trump has issued an amendment to last week’s nonimmigrant proclamation, making it more difficult for foreign nationals to qualify for an exemption from a suspension of the entry of foreign nationals in the H-1B, H-2B, L-1, and certain J-1 categories, as well as related categories for dependents. 

The amendment narrows the ban’s “valid visa” exemption to include only those who held a valid visa on June 24 in one of the affected nonimmigrant visa categories and who will not require a new visa to enter the United States. As originally issued, the plain language of the proclamation implied that a valid visa on June 24 in any category would exempt a foreign national from the order; it also suggested that foreign nationals could apply to renew their visas when they expired after June 24. The amendment appears to foreclose those earlier exemptions.

Who is subject to the nonimmigrant ban, as amended?

The proclamation still only affects the following categories of nonimmigrants:

• H-1B and H-2B nonimmigrants;
• L-1A executives and managers;
• L-1B specialized knowledge workers;
• J-1 interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants; and
• Their dependent spouses and children. 

However, the amended version of the proclamation appears to expand the class of foreign nationals subject to the new restrictions. The proclamation now restricts the entry of the above nonimmigrants, if:

• They are outside the United States at 12:01AM EDT on June 24, 2020;
• They do not hold a U.S. nonimmigrant visa in one of the above visa categories, pursuant to which the foreign national is seeking entry to the United States, and that is valid on June 24, 2020; and
• They do not hold an advance parole or other U.S. travel document that is valid on June 24, 2020 or issued after that date.

While the language of the amended proclamation is not crystal clear, taken together with recent communications from the State Department, and until the White House provides needed clarity, it is possible that U.S. consulates may not issue new H, L, or J visas, absent a waiver, for the remainder of the year, unless the proclamation is enjoined by a court.  This could be true even for those present in the United States on June 24, despite the plain language of the proclamation to the contrary.

Who is exempt from the amended ban?

• A foreign national who was present in the United States on June 24, holds a valid visa in one of the restricted categories and where that visa will remain valid through the date the individual seeks to reenter the United States;
• A foreign national who was outside the United States on June 24, holds a valid visa in one of the restricted categories and where that visa will remain valid through the date the individual seeks to reenter the United States;
• Canadian nationals who are visa-exempt;
• U.S. lawful permanent residents;
• The spouses and children of U.S. citizens;
• J-1 exchange program participants other than interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants;
• Those entering the United States to work in positions essential to the U.S. food supply chain;
• Those whose entry is deemed to be in the U.S. national interest, in the discretion of the U.S. government, which may include those necessary to facilitate the immediate and continued economic recovery of the United States, those involved in certain types of clinical care or research related to COVID-19, and those critical to U.S. national security or law enforcement

In addition, the proclamation should not affect the ability of nonimmigrants within the United States to change status to another category, including H-1B, pursuant to an approved USCIS petition and application to change status. 

How will the travel restrictions be implemented?

The Departments of State, Homeland Security and Labor are expected to issue guidance on the implementation of the ban, the national interest exemption criteria and procedures, and other issues. The guidance is expected to clarify a number of open questions about the travel restrictions, including those stemming from recent Twitter communications from the State Department.

Until implementation guidelines are issued, those who may wish to claim an exemption from or seek a national interest waiver of the restrictions should carefully consider whether to undertake international travel and should expect significant reentry delays while the proclamation is in force. Those with an expired H-1B, H-2B, H-4, L-1, L-2, J-1 or J-2 visa who plan to make a short trip to Mexico or Canada to automatically revalidate their visa should also avoid doing so until further government clarification is issued.

Foreign nationals who relied on the text of the initial proclamation, traveled abroad and are unable to return because of the amended restrictions should contact their designated Fragomen professional.

As a reminder, foreign nationals who are exempt from the new proclamation remain subject to ongoing COVID-19 travel restrictions, which could also impede their ability to enter or reenter the United States. 

Fragomen is closely monitoring implementation of the presidential proclamation and will provide updates as the Administration issues guidance.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.