By Roujin Mozaffarimehr
As we reported last month, on June 22, 2020, President Donald Trump signed a Presidential Proclamation suspending the entry of H-1B and H-2B visas and accompanying dependents, certain J visas, and L visas and accompanying dependents, and extending the April 2020 suspension on certain immigrants. banning visa issuance through December 31, 2020.
The Proclamation listed 3 elements that needed to be met to be subject to the suspension, which included:
(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
(iii) 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 this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
A discussion on exemptions and those who are not impacted can be found in our previous post.
The proclamation was subject to a bit of interpretation. The State Department has finally issued several clarifications for the proclamation. We discuss recent updates and clarifications below.
- Clarifications of Exceptions– DOS Website Updates
The State Department published, “Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak” on July 17th, which provided clarifications on exceptions to the proclamation for those in the national interest, as well as dependents of L-1 and H-1B holders. Notable exceptions include:
National Interest by Nonimmigrants:
- Applicants who are subject to aging out of their current immigrant visa classification before the relevant P.P.s expire or within two weeks thereafter.
- For H-1Bs, exceptions are available in these situations:
- For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
- Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
- For J-1 visas, exceptions are available in these situations:
- Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.
- Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
- Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
- An exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
- Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
- Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.
- Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.
- For L-1 visas, exceptions are available in this situation:
- Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
Please note that the above is not an exhaustive list.
Exceptions for H, L, and J Dependents
The DOS update also carved out exceptions for the H, L, and J dependents:
- National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to P.P. 10052 (including those that have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.
The State Department further clarified that, “Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa appointment at the closest Embassy or Consulate and a decision will be made at the time of interview. Travelers are encouraged to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.”
- Clarification of Exceptions by Tweet
As we discussed previously, based on the plain face reading of these elements, persons currently in the US without valid visas should not be subject to this ban. The State Department, through tweet, has clarified that our interpretation was in fact correct:
While a tweet on Twitter is not an official form of guidance or policy memorandum, it appears that the State Department is providing its stance on this platform. Based on the above, persons in the US as of June 24th without a valid visa are not subject to the suspension.
Please proceed with caution if you are considering travel without a valid visa at this time. The above not an official policy guidance from the Department, and in reality, the majority of consulates are still closed and are not offering visa appointment services.
If you have questions regarding the impact of the Proclamation, these clarifications, or are considering travel and do not have a valid visa in the H,J, or L categories, please do not hesitate to reach out to MPLG so that we may assist you.