On June 22, 2020, the President announced his “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following The Coronavirus Outbreak.” This Proclamation is important to employers and many (but not all) of their foreign national employees because it extends the existing ban on certain immigrant visas and suspends entry into the United States for certain non-immigrant workers.
The Proclamation became effective on June 24, 2020, and will expire on December 31, 2020. It can be extended, and also provides directives on evaluating other limitations on EB-2 and EB-3 immigrants and H-1B workers. It applies to the following classifications:
- H-1B
- H-2B
- L-1
- J-1 interns, trainees, teachers, camp counselors, au pairs, or summer program participants
- Family members who are accompanying or following the principal visa holder
In addition to classifications not included (E-2, TN, F-1, etc.), the proclamation specifically does not apply to the following foreign nationals:
- Foreign nationals inside the United States as of June 24, 2020
- Foreign nationals who already have a valid non-immigrant visa as of June 24, 2020
- Foreign nationals with an official travel document other than a visa (whether issued before or after the proclamation)
- Lawful permanent residents of the United States
- Spouses and children of U.S. citizens
- Any foreign national seeking entry to provide temporary labor or services essential to the U.S. food supply chain, and
- Any foreign national whose entry would be in the national interest
We know this raises a lot of questions, so below we provide you with the answers to some of your concerns.
Q: Our H-1B employee is a visa-exempt Canadian and is presently on a work assignment in Ontario. Can she return to the U.S.?
A: CBP has clarified that the proclamation does not bar visa-exempt Canadians from entering the United States. Therefore, your Canadian workers should be able to enter the United States under an H-1B or L-1 petition. While there is a “border closure” between the United States and Canada, employees of U.S. employers entering under H-1B or L-1 petitions should be considered as “essential.”
Q: Our L-1 employee is in Mexico and is in possession of a valid L-1 visa. Can he re-enter the U.S.?
A: This employee should be able to seek admission into the United States, as the person has a valid visa on the effective date of the proclamation. Like the U.S.-Canada border, there is a similar “border closure” between the United States and Mexico. However, foreign nationals entering the U.S. from Mexico for employment with an L-1 or H-1B visa can seek admission.
Q: Our H-1B employee who is in France on assignment has an expired H-1B visa. She was planning to get her visa renewed as soon as the consulate in Paris reopens. Is she eligible? If not, are there any waivers or exceptions to the rule?
A: This employee falls directly within the proclamation and is not, under the facts, eligible for a new visa. She might, however, be eligible to apply for a visa if she is the spouse or child of a U.S. citizen, if she provides essential services to the U.S. food supply chain, or if her entry is determined to be in the national interest. National interests might include work related to defense, law enforcement, diplomacy, or national security, or work related to the fight against COVID-19. Even then, there is an ongoing bar from entry for most foreign nationals entering the United States from the “Schengen” area (most of Europe). Because the ban is for individuals who have been in the Schengen area in the last 14 days, a potential strategy would be to go to another country for 14 days, then seek admission in the United States.
Q: Can our Japanese H-1B employee return to the U.S. on ESTA for a business meeting that is scheduled with Jimmy John Shark? Under the circumstances, can he resume work or change status back to H-1B?
A: There is no guarantee of admission under ESTA, but if it is strictly for a business meeting, that could be a permissible purpose under ESTA. This person, however, would not be able to work, and would not be eligible for a change of status from ESTA to H-1B.
We realize there are many other questions. And we recognize that sometimes business simply requires that an employee travel abroad. If possible, we suggest you follow these two simple rules of thumb: If a foreign national employee is in the United States and this is where he or she wants to be, do not travel. And if international travel needs arise for your business, dispatch a U.S. citizen or lawful permanent resident when possible, rather than a foreign national employee. Furthermore, having an llc operating agreement arkansas can help clarify travel policies and responsibilities within your organization.”
We will continue to closely monitor this important development and will keep you informed as interpretations and policies are announced. For the time being, we hope this resolves some of the uncertainty for you, and we continue to wish the best for the health and safety of you and your family.