September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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Travel Ban Restricts Entry to the U.S. of Certain Foreign Nationals in the H, L and J Visa Categories

On Monday, June 22, 2020 President Trump issued a new Proclamation that expands his temporary suspension of the entry of individuals to the U.S. This Proclamation follows a prior Proclamation of April 22, 2020, which temporarily suspended the entry to the U.S. of certain individuals who had recently been issued Immigrant Visas at U.S. Consular Posts abroad, and extends the April 22 Immigrant Visa travel ban through December 31, 2020. The stated goal of this new travel ban is to protect out-of-work Americans from competition from foreign workers. 

Effective at 12:01 am on Wednesday, June 24, the travel ban suspends entry to the United States until at least December 31, 2020 of certain individuals seeking to enter the U.S. in H-1B, H-2B, L-1, and J-1 visa classifications. Specifically, the Proclamation impacts individuals who are 1) outside the United States as of the effective date of the Proclamation; and 2) do not have a valid nonimmigrant visa or other official travel document as of the effective date of the Proclamation. Individuals who are in United States or remain in the United States in one of these visa statuses, as well as individuals who are currently outside the United States and who already have a valid nonimmigrant visa as of the effective date of the Proclamation, are not impacted.

With a number of exceptions, individuals approved in the following visa classifications who are outside of the United States without valid visa stamps in their passports are prohibited from entering the United States until December 31, 2020:

  • H-1B workers and their dependent family members;
  • H-2B workers and their dependent family members;
  • L-1 workers and their dependent family members; and
  • J exchange visitors who are participating in one of the following exchange categories ‒intern, trainee, teacher, camp counselor, au pair, or summer work/travel program ‒ and their dependent family members.

At the present time, U.S. Consular Posts have suspended routine visa processing. The Proclamation instructs the Department of State to implement the suspension to visa applicants. It therefore appears that Consulates will not issue visa stamps to applicants in the impacted visa categories until after December 31, 2020. Even if Consulates do re-open and issue visa stamps to applicants (who do not currently have valid visa stamps) between now and December 31, 2020, as a result of this Proclamation, such individuals would not be permitted to enter the U.S.

The Proclamation exempts the following individuals from the entry ban:

  • Any lawful permanent resident of the United States (which is not a true exemption, as a U.S. permanent resident would not fall into one of the above visa classifications);
  • The spouse or child (as defined in section 101(b)(1) of the Immigration and Nationality Act), of a United States citizen;
  • An individual seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  • An individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Regarding the final category above (national interest), the proclamation states:

“The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall establish standards to define categories of aliens covered by [the national interest section] of this proclamation, including 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.”

The travel ban expires on December 31, 2020, but the Proclamation states that it “may be continued as necessary.”

In addition to this Proclamation, the Trump Administration has also signaled that it may take additional measures to restrict existing work authorization options for foreign nationals, and further restrict eligibility for H-1B visa classification. In this Proclamation the President has also instructed the Secretary of Labor to promulgate regulations or take other actions that may limit or restrict the employment-based green card application process for certain foreign nationals.   There is no additional information available at this time on these potential restrictions.

This travel ban is likely to be the subject of litigation. This promises to be a rapidly evolving situation and we will provide updates as new information becomes available.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 175

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About this Author

John Quill Immigration Attorney Mintz Levin
Member / Chair, Immigration Practice

John’s practice encompasses all aspects of immigration and nationality law. John draws on over two decades of experience to help companies and their employees obtain nonimmigrant visas, including B, E, H, J, L, O, and TN visas. He also handles applications for PERM labor certification; extraordinary ability, outstanding researcher, and national interest waiver petitions; adjustment of status procedures; consular processing; and naturalization. John has distinguished himself in the use of legal operations and technology to streamline practices and develop innovative solutions to challenging...

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Susan J. Cohen, Immigration Attorney, Mintz Law Firm
Member / Founding Chair, Immigration Practice

Susan is a nationally recognized immigration lawyer. As Chair of Mintz’s Immigration Practice, she works with corporate clients to address their immigration challenges. Susan is very active in the American Immigration Lawyers Association (AILA) and has contributed to federal and state immigration regulations. She is frequently quoted in the media. She is also an editor of Mintz’s Immigration Law blog and has been recognized as a “Top Author” by JD Supra. Susan helped to lead a Mintz team that worked with the ACLU of Massachusetts and others to obtain a temporary restraining order on the 2017 Travel Ban. Through her pro bono work, she has helped many immigrants obtain asylum.

Susan is the founder and Chair of the firm’s Immigration Practice, which is composed of 12 attorneys and 18 immigration specialists and assistants who service the immigration needs of Mintz’s existing corporate and individual clients, and of new clients who choose the firm precisely for its knowledge in the field of immigration and nationality law.

Susan is actively involved in the American Immigration Lawyers Association (AILA) and has chaired and co-chaired a wide range of national AILA committees, including the National Planning Committee for AILA’s Annual Immigration Law Conference. She has also served on the review board for AILA periodicals and has served as the ABA’s liaison to the Department of Labor on immigration-related issues. She is a frequent panelist at AILA, ABA, and other immigration-related conferences, and a contributor to AILA, ABA, and other immigration-related publications.

Susan was involved in contributing to the US Citizenship and Immigration Services (USCIS) regulations implementing the Immigration Act of 1990, the Department of Labor regulations implementing changes to the H-1B visa category as a result of the American Competitiveness and Workforce Improvement Act of 1998, and the Department of Labor PERM labor certification regulations issued in 2004. Susan also advised the Commonwealth of Massachusetts in drafting the legislation which resulted in the Massachusetts Global Entrepreneur in Residence (GEIR) program.

Susan has won awards for her political asylum work from the Supreme Judicial Court of Massachusetts, the Political Asylum/Immigration Representation (PAIR) Project, the Massachusetts Lawyers Weekly, and Mintz.

During law school, she served on the Cardozo Law Review.

617-348-4468
Angel Feng, Immigration Attorney, Mintz Levin, Visa Petitions Lawyer, Green Card, Immigration EB-5 Financing
Special Counsel

Angel focuses her practice on business immigration matters and related compliance issues. She works with employers in designing and defining corporate immigration programs and policies, and in structuring short and long-term visa strategies for management, professional and specialized skill foreign employees.  She also advises employers on discipline, suspension and/or termination of visa sponsored employees and litigation prevention measures; and counsels clients on employment eligibility verification, I-9, and E-verify compliance and employer defense in ICE audits, and worksite...

617.348.1866