The June 22, 2020 Presidential Proclamation impacting certain nonimmigrant visa categories suspends the entry of new H-1B, L-1, H-2B, and certain J-1 nonimmigrants as well as their dependents, and renews and extends the immigrant visa bans. This proclamation was amended on June 29, 2020 to clarify that in order to be exempt, the visa upon which the person seeks entry must be in the same class as that already held. Having a ten-year tourist visa for example does not provide an exemption to enter on an H-1B. The H-1B visa used to enter had to have been issued before the ban. See Proclamation 10052.
This travel ban mainly impacts people seeking entry to the U.S. and is currently effective from June 24, 2020 to December 31, 2020. It does not apply to:
- Any lawful permanent resident of the United States
- Any alien who is the spouse or child 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.
Despite the clear indication that certain individuals are exempt from the travel ban, U.S. consulates/embassies, international airlines, and other U.S. immigration officials have not been provided clear guidance and thus appear reluctant to issue waivers.
For those seeking to qualify under the exemptions related to the “United States food supply chain” or “whose entry would be in the national interest,” each U.S. consulate appears to have their own process and requirements for expediting travel. Also, because of Covid-19, most U.S. embassies and consulates have very limited staffing and are slow in responding to requests. The best option may be to request an expedited visa appointment since every post has expedite criteria published.
The Secretaries of State, Labor, and Homeland Security are required to establish standards to define categories of persons exempt, including those that are:
- Critical to the defense, law enforcement, diplomacy, or national security;
- 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 United States facilities to help the United States combat COVID-19;
- Necessary to facilitate the immediate and continued economic recovery of the United States.
Applicants who are necessary to facilitate the immediate and continued economic recovery of the U.S. appears to be the area where the most exemptions are likely to be made.
Senior corporate executives and managers for multinational companies should be able to articulate their ability to contribute to the economic recovery of the U.S. on a sustained basis. Evidence might include expert testimonials from economists, trade associations, economics academics, trade commissions, state and local business groups, such as chambers of commerce, and letters from elected officials confirming the nature and scope of the impact.
Foreign nationals may be required to explain why the work cannot be performed remotely and/or by Americans. Ensuring a visa applicant has supporting documents to make compelling arguments related to economic development and U.S. job creation is going to be essential for a successful case.
Note that, in addition to overcoming this “labor market protection” ban, applicants need to be aware of other restrictions. This includes Covid 19 travel bans currently on:
- Brazil (effective May 26 at 11:59 p.m. EDT);
- The United Kingdom of Great Britain and Northern Ireland, excluding overseas territories outside of Europe;
- The Republic of Ireland;
- The 26 countries that comprise the Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland);
- The Islamic Republic of Iran;
- The People’s Republic of China, not including the Special Administrative Regions of Hong Kong and Macau.
Entry of foreign nationals who were physically present within the above list of countries within 14 days prior to their entry or attempted entry into the United States is suspended. With so many bans in place, it is important to understand and look at all the bans.
The initial bans from the current Administration focused on persons from predominately Muslim countries. These were supposed to be temporary bans but three years later, the list appears to be expanding and not contracting. Based on our experience obtaining waivers for nationals from these countries, we can confirm they need to be well-documented and are not easily granted. However, compelling cases will likely succeed if well documented.
WR Immigration Attorneys are experienced with consular processing and waivers. For assistance, please contact a WR representative.