Presidential Proclamation Extends Green Card Limitations and Reduces Temporary Visas

COVID-19 Update

Date: June 23, 2020

Yesterday, President Trump extended his April proclamation limiting the issuance of green cards and additionally put in place limits on temporary visas. The June 22, 2020 proclamation is titled: “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” Below is a summary of the proclamation and an analysis of possible additional changes to come.

Timelines

The June proclamation was issued the day on which the April proclamation was set to expire, and it extends the April proclamation’s limit on foreign nationals outside the United States entering the United States as permanent residents until at least December 31, 2020. The additional restrictions on temporary visa holders will also be in place until December 31, 2020. The June proclamation’s extension of the April proclamation is effective immediately. The additional restrictions on temporary visa holders go into effect at 12:01 a.m. on June 24, 2020.

The Scope of Limitations on Green Cards (Set in the April Proclamation and Continued by the June Proclamation)

The June proclamation’s only change to the April proclamation was the extension of its expiration date and a call for a review every 60 days, beginning on July 24, 2020, to determine if changes should be made to the April proclamation’s limit on foreign nationals entering the United States as permanent residents.

As a reminder, the April proclamation bans the entry as a permanent resident of those who:

  • Were outside the United States on the effective date of the April proclamation;
  • Do not have a valid immigrant visa (a visa qualifying the foreign national for permanent residency upon entry) on the effective date; and
  • Do not have a valid official travel document (such as a transportation letter, boarding foil or advance parole document) on the effective date, or issued on any date thereafter, that permits travel to the United States to seek entry or admission.

The April proclamation carves out exceptions for certain workers, such as medical professionals and other essential employees. The list of individuals exempted from the April proclamation is long and includes:

  • Lawful permanent residents (current green card holders)
  • Individuals and their spouses and unmarried children under the age of 21 seeking to enter the United States on an immigrant visa as a physician, nurse or other health care professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the secretaries of the Departments of State and Homeland Security, or their respective designees)
  • Spouses of U.S. citizens
  • Members of the U.S. Armed Forces and their spouses and children
  • Children of U.S. citizens under the age of 21 and prospective adoptees
  • Individuals applying for a visa to enter the United States pursuant to the EB-5 immigrant investor visa program (a program under which the foreign national invests more than $500,000 in a U.S. project)
  • Individuals whose entry would be in the national interest (as determined by the secretaries of State and Homeland Security, or their respective designees)
  • Individuals who would further important U.S. law enforcement objectives (as determined by the secretaries of Homeland Security and State based on the recommendation of the attorney general, or their respective designees)
  • Individuals and their spouses or children eligible for Special Immigrant Visas as Afghan or Iraqi translators/interpreters or U.S. government employees (SI or SQ classification)

The April proclamation expressly states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

The distinction between foreign nationals who are outside the United States at the time of the proclamation and those who are in the country seeking to change their immigration status is important. Only those currently outside the United States are within scope. Because of this limitation on the scope, the proclamation does not materially change the current limitations; U.S. consulates have already suspended visa processing for those outside the United States. It does, however, confirm that those limitations will not be lifted before the end of the year.

Scope of Temporary Visa Restrictions

The June proclamation prevents certain foreign nationals (and their family members) outside the United States from entering the United States under certain work-based visas: H-1B professional workers, H-2B nonagricultural temporary work visas, L-1 international transferees with global companies, and J-1 visas for interns, trainees, teachers, camp counselors, au pairs, or summer work travel program participants. The restrictions do not apply to all foreign nationals seeking entry under H-1B, H-2B, L-1 or J-1 visas. The restrictions apply only to those outside the United States on June 24, 2020, who do not have a valid visa or a valid travel document (such as an advance parole document). What is unclear is whether any temporary visa valid on June 24, 2020 will remove a foreign national from the scope; for instance, it is unclear if someone outside the United States who holds a valid B-1/B-2 visitor visa or F-1 student visa is not subject to the restrictions of the June proclamation. Meaning, the individual could still obtain an H-1B, H-2B, L-1 or J-1 and enter. Similarly, it appears foreign nationals inside the United States on June 24, 2020 (with or without a valid visa) will be eligible to travel and apply for a visa renewal (once visa services resume). The State Department can likely achieve the broadest reach by not resuming the issuance of the types of visas outlined in the June proclamation. Right now, consulates have suspended visa service and they could continue the suspension of certain visa processing.

Canadian citizens appear to be outside the scope of the June proclamation. They do not need visas to enter the United States and can instead seek admission as H-1B, L-1, H-2B or J-1 workers without first securing visas.

Employers who utilize the H-1B visa program will see a significant impact because of the timing. In March, U.S. Citizenship and Immigration Services (USCIS) conducted its lottery selecting employers who could proceed with filing H‑1B petitions. Those petitions need to be filed by June 30, 2020, and they have a requested start date of October 1, 2020. USCIS will receive the filing fees for those petitions and the employers may receive approval notices, but if the H-1B workers are outside the United States, waiting until October to enter the United States, they will not be able to enter at that time because of this June proclamation.

Exceptions to Temporary Worker Restrictions Outlined in the June Proclamation

The limitations on entry of temporary workers do not apply to:

  1. lawful permanent residents of the United States;
  2. spouses and children of a U.S. citizen;
  3. foreign nationals seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain; and
  4. foreign nationals whose entry would be in the national interest as determined by the secretaries of State and Homeland Security, or their respective designees.

The June proclamation calls for the secretaries of the Departments of State, Labor and Homeland Security to establish standards to define categories of workers qualifying for the national interest exception. Those initially identified are workers who are critical to the defense, law enforcement, diplomacy, or national security of the United States; providing medical care to individuals who have contracted COVID-19 and are currently hospitalized; providing medical research at U.S. facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.

Additional Calls for Further Restrictions

Similar to the April proclamation, this June proclamation calls for agencies to make recommendations on further restrictions. President Trump seeks recommendations to reduce the risk that foreign nationals seeking admission or entry to the United States may introduce, transmit, or spread COVID-19 within the United States; and ensure that foreign nationals seeking H-1B status and certain employment-based green cards do not disadvantage U.S. workers.

Going beyond seeking recommendations, Trump directs the secretary of Homeland Security to: (1) gather biographical and biometric information, including but not limited to photographs, signatures, and fingerprints for all foreign nationals seeking U.S. visas or entry to the United States; (2) prevent employment authorization for foreign nationals who have final orders of removal, are inadmissible or deportable from the United States or have been arrested for, charged with, or convicted of a criminal offense in the United States; and (3) consider promulgating regulations or take other appropriate action to ensure H-1B workers do not disadvantage U.S. workers. The second directive may be responsive to the Deferred Action for Childhood Arrivals (DACA) decision; it limits work authorization for those who are deportable but does not eliminate the entire DACA program. As there are not yet procedures in place for any of these recommendations, they will not be immediate.

Closing Thoughts

Yesterday’s proclamation does not affect foreign nationals present in the United States or those outside with valid work visas, but future regulations could limit the ability of those foreign nationals to change to or extend H-1B status or be sponsored by their employers for permanent residence.

Additionally, even foreign nationals exempt from the new proclamation are subject to ongoing COVID-19 travel restrictions and limited consulate services.

FOR MORE INFORMATION

Contact your Thompson Hine immigration counsel to discuss any questions about this proclamation or other immigration issues impacting your workforce:

Sarah C. Flannery
216.566.5718
Sarah.Flannery@ThompsonHine.com

Staci M. Jenkins
513.352.6734
Staci.Jenkins@ThompsonHine.com

Additional Resources

Thompson Hine’s multidisciplinary COVID-19 Task Force is monitoring the latest developments and guidance from public health officials and assessing the potential impacts on our clients and their businesses. The COVID-19 Task Force page on our website provides a centralized location for recent publications, webinar recordings and resources that you may find helpful.

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