President Trump Extends H/L/J Nonimmigrant Proclamation and Immigrant Proclamation to March 31, Though Exceptions Remain

The issue

President Trump has extended the nonimmigrant proclamation suspending 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, to March 31, 2021. The proclamation also immediately extends until that same date the existing ban on certain immigrant entries. Both bans were scheduled to expire on December 31, 2020.

Who is subject to the nonimmigrant ban?

The H/L/J nonimmigrant proclamation, which was initially issued in late June, 2020, 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. 

Foreign nationals applying for visas in the above classifications are subject to the ban if they meet all three of the following criteria:

• They were outside the United States at 12:01AM EDT on June 24, 2020;
• They did not hold a U.S. nonimmigrant visa in one of the above visa categories on June 24, pursuant to which they are seeking entry to the United States; and
• They do not hold an advance parole or other U.S. travel document (other than a nonimmigrant visa) pursuant to which they are seeking entry to the United States.

Who is exempt from the nonimmigrant ban?

• A foreign national who was present in the United States on June 24, 2020;
• A foreign national who held a valid visa on June 24 in one of the restricted categories pursuant to which the individual seeks to reenter the United States;
• A foreign national who holds a valid advance parole or other U.S. travel document (other than a nonimmigrant visa) pursuant to which the individual seeks to enter 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;
• Certain foreign nationals entering the United States to work in positions essential to the U.S. food supply chain (generally H-2B only);
• Those whose entry is deemed to be in the U.S. national interest, in the discretion of the U.S. government. State Department guidance on this exception was issued on August 12, 2020 and includes 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, pursuant to a federal court order, some organizations and their foreign employees may benefit from a limited preliminary injunction that prohibits the federal government from enforcing the H/L/J ban against the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, Technet, and Intrax, Inc., an organization that sponsors cultural exchange programs, as well as the members of these organizations. The federal government has appealed the injunction but it remains in place until further notice.

As a reminder, foreign nationals who are exempt from the H/L/J proclamation remain subject to ongoing COVID-19 public health travel restrictions and reduced consular operations abroad, which could impede their ability to enter or reenter the United States. 

Extension of the immigrant entry ban

The proclamation also extends through March 31, 2021 an earlier ban on immigrant entry, which was set to expire on December 31, 2020. U.S. consulates will not issue employment-based, family-based or Diversity Lottery immigrant visas during this period, with limited exceptions for U.S. lawful permanent residents; spouses of U.S. citizens; children under 21 of U.S. citizens and prospective adoptees in the IR-4 or IH-4 visa classifications; foreign nationals seeking to enter on an immigrant visa as a healthcare professional, as well as their spouse and unmarried children under 21; applicants for EB-5 immigrant visas; and those whose entry would be in the U.S. national interest.

What is next for the bans?

Under the proclamation, the bans are currently in effect through March 31, 2021. Presidential proclamations can be reversed by issuance of a subsequent proclamation, but President-elect Joseph Biden has not yet addressed whether he will rescind the H/L/J nonimmigrant visa ban or immigrant visa ban after taking office on January 20. It is anticipated that all Trump Administration immigration bans will at least undergo a review for potential rescission in the new Administration. 

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