September 26, 2020

Volume X, Number 270

September 25, 2020

Subscribe to Latest Legal News and Analysis

September 24, 2020

Subscribe to Latest Legal News and Analysis

September 23, 2020

Subscribe to Latest Legal News and Analysis

How Does the New Presidential Proclamation Regarding Non-Immigrant Visas Affect Your Company

 Presidential Proclamation

On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories.

Short Checklist Summary of the Visa Ban

  • Goes into effect on June 24, 2020 and will last to Dec 31, 2020.

  • Only applies to foreign nationals applying for new travel visas from overseas.

  • Doesn’t impact those who already have a travel visa in their passport.

  • Doesn’t immediately impact non-immigrant workers already in the U.S.

  • Restricted visas include:

    • H-1B

    • H-2B (other than food workers)

    • All J-1’s except scholars and students

    • All L-1’s (including L-1A executives and L-1B specialized knowledge workers)

  • There is an exemption for those that:

    • Are critical to the defense, law enforcement, diplomacy, or national security of the United States;

    • Are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

    • Are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;

    • Or are necessary to facilitate the immediate and continued economic recovery of the United States.

  • It also does not apply to:

    • Lawful permanent residents (green card holders);

    • Spouses or children of U.S. citizens;

    • Workers providing essential services for the U.S. food supply chain;

    • Anyone whose entry is determined by the State Department or DHS to be in the national interest.

  • Possible Future H-1B Labor Market Test: There is language directing DHS and DOL to explore rule-making to re-define H-1B specialty occupation to better protect U.S. workers.  This would take at least several months to do.  In addition, it will likely be challenged in the Courts on the basis that Congress already defined H-1B specialty occupation in the Immigration & Nationality Act and Congress would need to make those changes.

  • Reviewing the Basis of Granting Employer Sponsored Permanent Residency: There is also language in the Proclamation directing DOL and DHS to review some of the employment-based permanent residency programs to further ensure that they do not adversely impact U.S. workers.  This would include individuals who receive green cards based on PERM labor certifications in the employment-based 2nd preference with an advanced degree (EB2) and in the employment-based 3rd preference with a college degree (EB3).

COVID-19 Travel Ban

It should be noted that, at this time, there are other travel bans not related to non-immigrant visa restrictions.  The most notable is the complete ban on inbound travel from Europe as well as several other countries around the world.  In addition, all U.S. Embassies and Consulates are currently closed for visa applications.

Guidance on Visas, I-94, and Travel

Sheppard Mullin reminds employers and foreign national employees of the following guidance:

  • Make sure you understand the difference between a visa and an I-94, and what each one does.

  • The visa is in a passport and issued by the U.S. Consulate abroad and is used to travel and enter the U.S.

    • The visa doesn’t control a period of stay in the U.S.

    • The visa expiration date is the last day to enter the U.S.

  • The I-94 is issued at the Port of Entry by S. Customs and Border Protection (CBP) or by U.S. Citizenship and Immigration Services (USCIS) for a change of status or extension of status by issuing an I-797 approval notice with an I-94.

    • The I-94 expiration date controls the last day to stay in the US or to file a change of status or extension of status with USCIS.

  • The I-94 can be printed online from CBP.

  • S. Consulates frequently issue travel visas that have a validity that extends beyond the validity of the petition issued by USCIS. Caution must be taken to make sure that one’s petition and I-94 validity are valid at all times.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 175


About this Author

Greg L. Berk, Immigration Attorney, Sheppard Mullin Law Firm
Special Counsel

Greg Berk is a special counsel in the Labor and Employment Practice Group in the firm's Orange County office, where he focuses on immigration matters firmwide.

Areas of Practice

Mr. Berk has many years of experience advising on U.S. immigration matters.  He assists employers worldwide with the hiring and retention of talented foreign nationals that are needed in their U.S. workforce.  Frequently, a company must place a critical existing or new foreign national employee on the U.S. payroll within a few weeks.  Mr. Berk and his team...

Jonathan E. Meyer, Sheppard Mullin, International Trade Lawyer, Encryption Technology Attorney

Jon Meyer is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Mr. Meyer was most recently Deputy General Counsel at the United States Department of Homeland Security, where he advised the Secretary, Deputy Secretary, General Counsel, Chief of Staff and other senior leaders on law and policy issues, such as cyber security, airline security, high technology, drones, immigration reform, encryption, and intelligence law. He also oversaw all litigation at DHS, including high-profile issues such as executive action and no-fly rules, and managed the most important cases on a day-to-day basis, at levels from discovery disputes to Supreme Court briefs. Additionally, he led the Department’s responses to Congressional oversight from over 90 committees and caucuses of jurisdiction, including testifying before Congress and preparing high profile witnesses for their testimony.  Mr. Meyer was a point person for coordination with the White House, and the Departments of State, Justice, Defense, and many others.

Sarah Aberg Government Contracts Attorney Sheppard Mullin Law Firm New York
Special Counsel

Sarah Aberg is special counsel in the White Collar Defense and Corporate Investigations Group in the firm's New York office.

Areas of Practice

Sarah's practice encompasses litigation, internal investigations and white collar defense, with a focus on financial services and securities. She has conducted multiple criminal trials and numerous internal investigations into a wide variety of allegations, including mail and wire fraud, mortgage fraud, insider trading, market manipulation, money laundering,...

Karl Buhler Sheppard Mullin Corporate Intellectual Property International Reach France

Karl Buhler is an associate in the Corporate and Securities Practice Group and French Desk in the firm's New York Office.

Areas of Practice

Karl’s practice primarily focuses on domestic and cross-border transactions (with special emphasis on operations involving French companies). He has experience in mergers, acquisitions, joint ventures, and complex commercial agreements in a variety of industries such as technology, communications, life sciences, energy, defense and aerospace. In particular, he advises foreign companies with the installation and...

Bochan Kim, Sheppard Mullin Law Firm, Seoul, Corporate and Finance Law Attorney

Bochan Kim is an associate in the Government Contracts, Investigations and International Trade Practice Group in the firm's Seoul office. Ms. Kim is also barrister and solicitor of New South Wales, Australia and New Zealand.

Areas of Practice

Ms. Kim represents major financial institutions and companies involved in the entertainment and digital media. Her work mostly involves advising banks and other financial institutions in connection with banking law regulatory issues as well as matters in relation...