The Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak (Proclamation) was released on June 22, 2020, continuing a proclamation issued on April 22, 2020 (which suspended the entry of certain immigrants) and further suspending the entry of certain nonimmigrants into the U.S. effective June 24, 2020.
President Trump has stated that the implementation of the Presidential Proclamation is necessary due to some of the most extreme unemployment ever recorded by the Bureau of Labor Statistics in the U.S. and because certain nonimmigrant visa programs pose an "unusual threat" to the employment of American Workers and that entry of certain foreign nationals as immigrants and nonimmigrants would be detrimental to the interests of the U.S. The Proclamation expires on December 31, 2020.
This bulletin outlines the details of the Proclamation and potential implications to Canadians and other foreign nationals seeking to enter the U.S. to work in the near future.
What are the restrictions in the Proclamation
The Proclamation restricts foreign nationals seeking entry to the U.S. pursuant to the H-1B, H-2B, J and L visas, and accompanying family, subject to certain exceptions. The J visa suspension specifically references restrictions for foreign nationals participating in an intern, trainee, teacher, camp counselor, au pair or summer travel program.
This suspension applies only to any foreign national who:
- is outside the U.S. on the effective date of the proclamation (June 24, 2020);
- does not have a nonimmigrant visa that is valid on the effective date of the proclamation; and
- does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of the proclamation or issued on any date thereafter that permits him or her to travel to the U.S. and seek entry or admission.
The suspension does not apply to:
- any lawful permanent resident of the U.S.;
- any alien who is the spouse or child, of a U.S. citizen;
- any alien seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain; and
- any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
How are existing visa holders impacted
Based on details from the American Immigration Lawyers Association (AILA), those individuals who had valid visas prior to June 24, 2020 at 12:01 a.m. ET will be permitted entry into the U.S. after the effective date of the Proclamation regardless of whether they had entered the U.S. before or after the effective date.
How does the Proclamation impact Canadian citizens
U.S. Customs and Border Protection (CBP) Headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the Proclamation. This is due to Canadians being visa-exempt when entering the U.S.
The Proclamation should also not affect Canadians currently inside the U.S. in nonimmigrant status, who later leave and reenter in their respective nonimmigrant classification.
The Proclamation also should not affect those individuals who hold, or who are applying for, NAFTA TN nonimmigrant classification.
What does this mean for businesses and nonimmigrants
Consular officers have discretion to issue visas and the CBP officers have discretion to grant entry to foreign nationals seeking to enter the U.S.
Pursuant to the Proclamation, this discretion will also include determining whether a nonimmigrant has established his or her eligibility for an exception to the suspension and travel restrictions outlined in the Proclamation. It remains to be seen how officers will interpret what is considered "services essential to the United States food supply chain" or what is considered in the "national interest".
Although CBP has confirmed that the Proclamation does not apply to Canadians, those Canadians seeking to enter the U.S. as nonimmigrants may still face increased scrutiny in the face of the Proclamation and will need to have strong submissions and supporting documentation evidencing that the Proclamation does not apply. The Proclamation is certainly going to affect international companies that have operations in the U.S. and regularly require certain nonimmigrants to work in the country. Different nonimmigrant categories may need to be considered and implemented into a business' immigration and workforce strategy.
We anticipate that guidance will follow on categories of foreign nationals covered by the "national interest" exception. The Proclamation states that the Secretary of State, the Secretary of Labor and the Secretary of Homeland Security will establish standards to determine categories under the national interest exception, including those that are:
- critical to the defense, law enforcement, diplomacy, or national security of the U.S.;
- involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
- involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19; or
- necessary to facilitate the immediate and continued economic recovery of the U.S.
These exceptions could prove to create broad categories permitting international businesses to continue to utilize the H-1B, H-2B, J and L nonimmigrant categories in certain circumstances.
Other types of nonimmigrant classifications that are not restricted by the Proclamation, such as treaty trader (E-1) and investor (E-2) nonimmigrant categories, will likely see increased demand which may result in longer processing times.
We will continue to watch the developments of the application and interpretation of the Proclamation. To learn more about U.S. immigration or the potential effect of this Proclamation on your business, please contact a member of Gowling WLG's Immigration Group.