President Trump issues new Immigration Proclamation

On June 22, 2020, President Trump issued a new Proclamation extending the suspension of admission to the US of certain classes of immigrants (that is, individuals who are seeking to travel to the US in order to establish permanent residence) set forth in Proclamation 10014 dated April 22, 2020.[1]

The Proclamation also imposes new restrictions on admission to the US, effective June 24, 2020 at 12:01am EST, for foreign national employees who are seeking to enter the US in the following nonimmigrant statuses (that is, individuals who are seeking to travel to the US for a temporary stay), as well as their dependent family members:

• H-1B professional workers;
• H-2B seasonal workers;
• J-1 exchange visitors seeking to participate in the following exchange categories: intern, trainee, teacher, camp counselor, au pair, or summer work travel program; and
• L-1 intra-company transferees.

The scope of the new Proclamation is limited only to an individual who:

• Is outside the US on June 24, 2020;
• Does not have a nonimmigrant visa that was valid on June 24, 2020; 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 was valid on June 24, 2020 or issued on any date thereafter that permits him or her to travel to the US and seek entry or admission.

Further, the new Proclamation does not apply to the following classes of aliens:

• Any lawful permanent resident (“green card holder”) of the US (this exception is nonsensical, as green card holders do not fall into any of the restricted classes);
• Any alien who is the spouse or child aged less than 21 years of a United States citizen;
• Any alien seeking to enter the United States to provide temporary labor or services essential to the United States 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.

These restrictions will last until December 31, 2020, but they may be further extended at the President’s discretion.

This new Proclamation does not affect any H-1B, H-2B, L-1, or J-1 worker who is physically present in the US on June 24, 2020 or any such individual who was outside the US on that date and is in possession of a valid nonimmigrant visa or other travel document.

However, we note that the Proclamation contains several ambiguities and internal inconsistencies, and our analysis may evolve as we receive further guidance from the Administration. For example, it is unclear if Canadian H-1B, H-2B, L-1, and J-1 workers (who are not required to obtain visas for US travel) could be affected if they are outside the US on June 24, 2020. Further, we do not know if the possession of any valid nonimmigrant visa will exempt an individual from the restrictions, or if the visa must be of a type specifically mentioned in the new Proclamation. Finally, it is unclear whether Singaporean and Chilean H-1B1 workers are subject to the restrictions.

Given these uncertainties and ambiguities, we advise our clients to encourage their H-1B, H-2B, L-1, and J-1 workers who are already within the US to avoid international travel unless their current visa stamps are valid until at least December 31, 2020. As we learn more about how the Trump Administration implements the new restrictions, we will provide further, risk-appropriate guidance.

Silver Linings: Although the new Proclamation will impose significant logistical and human resources burdens on many US employers, particularly within the technology and scientific industries, certain restrictions we feared were forthcoming were not included in the Proclamation, including:

• Suspension of STEM Optional Practical Training employment authorization for foreign graduates of US academic institutions;
• Elimination of employment authorization eligibility for certain H-4 spouses of H-1B holders; and
• A $20,000 “surcharge” on new H-1B petitions.

We expect that the Proclamation will be challenged in federal court in coming days and weeks.  Any plaintiffs to such a challenge would almost certainly request an injunction which, if granted, would suspend the implementation of the restrictions until the underlying litigation is resolved. We will provide updates as additional information becomes available.

We are reaching out to clients to discuss the impact of the new Proclamation on their specific foreign national employees. In the meantime, please do not hesitate to reach out to the Outside GC Immigration Team at lgeisinger@outsidegc.com or efarwell@outsidegc.com with any questions.

[1] The Outside GC immigration team’s analysis of Proclamation 10014 can be found here.