President Trump Imposes Ban on H-1B, L-1, H-2B and J-1 Entry Beginning June 24

The issue

President Trump today signed a proclamation that will suspend the entry of foreign nationals in the H-1B, L-1, H-2B, J-1 categories, and related categories for dependents, with some exceptions.  The nonimmigrant ban takes effect at 12:01am EDT on June 24, and will be in place through December 31, 2020.

In addition, the proclamation extends the existing ban on certain immigrant entries through December 31, 2020, effective immediately. 

The proclamation is part of the Trump Administration’s response to the economic impact of the COVID-19 pandemic.  In addition to the entry bans, President Trump also ordered the Department of Homeland Security  to promulgate regulations that could make it more challenging for foreign nationals to be sponsored for H-1B nonimmigrant status or for green cards in the EB-2 and EB-3 categories. 

The proclamation and future regulatory actions are likely to be challenged in court.

Who is subject to the nonimmigrant ban

The proclamation restricts the entry of the following categories of nonimmigrants, if they are outside the United States as of 12:01am EDT on June 24 and do not hold a valid visa, advance parole or other U.S. travel document:

• 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. 

The impact on Canadian nationals seeking admission in these categories – who are not required to obtain a visa to enter the United States – is not yet clear.

Exemptions and waivers

The following categories of foreign nationals are exempt from to the entry ban:

• Foreign nationals present in the United States at 12:01am EDT on June 24, 2020.  This includes those in the United States awaiting a change of status under the FY 2021 H-1B cap;
• Foreign nationals holding a valid visa, advance parole or other U.S. travel document on June 24, even if they are outside the United States when the ban takes effect;
• U.S. lawful permanent residents;
• The spouse or child of a U.S. citizen;
• J-1  exchange program participants other than interns, trainees, teachers, camp counselors, au pairs and summer work travel participants; and
• Foreign nationals entering to provide temporary labor or services essential to the U.S. food supply chain.

The proclamation also provides for discretionary waivers of the restrictions for foreign nationals whose entry would be in the U.S. national interest, including those who are necessary to facilitate the immediate and continued economic recovery of the United States, those involved with clinical care or  research related to the diagnosis, treatment and prevention of COVID-19, and those who are critical to the defense, law enforcement, diplomacy or national security of the United States.

Waiver procedures are expected to be developed by the State Department in consultation with the Departments of Labor and Homeland Security. Waivers are to be decided on a case-by-case basis and are likely to be challenging to obtain.

Duration of the nonimmigrant entry ban

The nonimmigrant ban will take effect at 12:01am EDT on June 24 and will remain in place through the end of this calendar year. The administration could elect to extend or broaden the ban in the future.

Extension of the immigrant entry ban

The proclamation extends through December 31 an earlier ban on immigrant entry, which was set to expire today. 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.

Forthcoming regulations restricting nonimmigrant programs

As part of the Trump Administration’s effort to give priority to U.S. workers, the proclamation orders the Departments of Homeland Security and Labor to develop regulations to ensure that H-1B nonimmigrants and EB-2 and EB-3 immigrants do not disadvantage U.S. workers.  These regulations could impose more stringent H-1B eligibility criteria and wage obligations, change the way the H-1B quota is allocated to give priority to certain classes of beneficiaries, impose obligations on the vendors of companies placing H-1B workers at end-client locations, as well as on end-client companies themselves, increase worksite enforcement investigations, and toughen labor certification standards for permanent residence in the EB-2 and EB-3 categories.  Some of these regulations could be implemented on a fast track.

What the proclamation means for employers and foreign nationals

Today’s proclamation means that many foreign 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.

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

As a reminder, foreign nationals who are exempt from the new proclamation remain subject to ongoing COVID-19 travel restrictions, which could 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 information purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.