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 tothe defense, law enforcement, diplomacy, or national security of
the United States;
- Foreign nationals who are involvedwith the provision of medical care to individuals who have
contracted COVID-19 and are currently hospitalized;
- Foreign nationals who are involvedwith the provision of medical research at U.S. facilities to help
the U.S. combat COVID-19;
- Foreign nationals who are necessaryto facilitate the immediate and continued economic recovery of the
United States; or
- Foreign nationals who are childrenwho 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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