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

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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