Effective June 24, 2020, President Trump issued a proclamation that extends his previous order that banned certain immigrant visas from being issued by the Department of State and suspends the entry of foreign nationals who are outside of the United States who need to apply for an H-1B, H-2B, J-1 and L-1 visa stamp. The restriction also applies to dependent family members who are outside of the U.S. and who need to apply for the corresponding dependent visa stamp. The impacted visa categories are: H-4, J-2, and L-2. Both bans are in effect through December 31, 2020. The ban does not apply to (1) lawful permanent residents; (2) spouses of a U.S. citizen; (3) minor children of a U.S. citizen; (4) certain “aging out” children; (5) individuals who have a valid Advance Parole document; and (6) individuals holding other official travel documents other than a visa (transportation letter or boarding foil). Because Canadians are visa-exempt, the ban does not apply to them.
The following FAQs, adapted from guidance provided by the Department of State, provides more details on who is and who is not affected:
Q: Are there any other exemptions to these bans?
A: Yes, exemptions may be available for foreign nationals providing temporary labor or services essential to the U.S. food-supply chain, as well as for foreign nationals whose entry would be in the national interest of the U.S. Factors that will be considered to be in the national interest include individuals who are: (1) critical to defense, law enforcement, diplomacy, or national security of the U.S.; (2) involved with the provision of medical care related to COVID-19 for individuals who are currently hospitalized; (3) involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19; and (4) necessary to facilitate the immediate and continued economic recovery of the U.S.
Q: I am already in the U.S. on one of the identified visas. What does this mean for me?
A: The Proclamation is not retroactive. No valid visas will be revoked under this Proclamation.
Q: I am in the U.S. but my visa will expire before December 31. Can I extend my stay?
A: Yes. Visa expiration is separate from authorized stay. Visa holders already legally in the U.S. do not need to renew their visa to remain. However, if you depart the U.S., you will need a valid visa to return.
Q: My dependents are outside the U.S. and do not hold H-4, L-2, or J-2 visas. Can they enter the U.S. as visitors using a B-2 visa stamp or visa waiver (ESTA)?
A: Yes, dependents holding valid B-2 visas as well as those from visa-waiver countries with approved ESTA registrations should be able to enter the U.S. during the entry ban period for brief visits, consistent with B-2 visa requirements or ESTA program restrictions.
Q: Can employers continue to file H-1B and L-1 petitions with USCIS seeking to change, amend, and extend status?
A: Yes, the entry ban does not affect an employer’s ability to file petitions with USCIS.
Q: I am currently in the U.S. but my H-1B or L-1 status is expiring during the entry-ban period. What should I do?
A. Your employer should file a petition to extend your status with USCIS. A timely filed H-1B petition can extend your work authorization in the U.S. for up to 240 days beyond your I-94 expiration date. For many L-1 workers on “Blanket Ls,” this process will be different than the L-1 Blanket process that you may have used when applying for previous L-1 visas.
Q: Does the entry ban affect employees on H-1B1 visas?
A: While the ban does not specifically apply to foreign nationals from Singapore and Chile who hold or will apply (once consulates reopen) for H-1B1 Free Trade visas, caution should be taken as this visa classification is often confused with H-1B visas, which can result in potential entry issues at the border.
Q: Which J visas are subject to the Proclamation?
A: The Proclamation applies to J visa holders “participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien.” Foreign nationals in J-1 status who are completing degree programs and working pursuant to Academic Training are not affected by the travel ban. Physicians applying for a J visas are not subject to the Proclamation. Physicians seeking to enter the U.S. on an H-1B or L visa to provide medical care, or are involved in research related to COVID-19, may be considered for exceptions.
Q: Does this proclamation affect my ongoing green card process?
A: No. this proclamation does not affect a foreign national’s ability to apply for a green card through the filing of an I-485 Adjustment of Status Application.
Q: Will this impact Diversity Visa applicants?
A: Yes, for those outside of the U.S.
Other Travel Restrictions
With specific exceptions, foreign nationals who have been in any of the following countries during the past 14 days may not enter the United States: China; Iran; European Schengen area; United Kingdom; Republic of Ireland; and Brazil. Exceptions are available for essential workers.
Moreover, the United States, Canada, and Mexico are still restricting all nonessential travel across the U.S. border, including tourism and recreation. However, essential commercial activity will not be impacted; Americans, Canadians, and Mexicans who cross the land border to do essential work for other urgent or essential reasons will not be impacted. Additionally, U.S. Customs and Border Patrol (CBP) will no longer detain unauthorized migrants in holding facilities and will immediately return them to either the country from which they entered, or where possible, to their country of origin.
Department of Homeland Security: USCIS, ICE, and CBP
USCIS Offices Reopened for Most Nonemergency Services
As of June 4, 2020, many domestic USCIS field offices and asylum offices re-opened for normal face-to-face services to the public on an appointment basis. Application support centers (ASCs) remain closed but are expected to open beginning in mid-July. This means all in-person interviews have been resumed. All scheduled appointments are being automatically rescheduled by USCIS. Applicants (and petitioners) do not need to contact USCIS. Visitors may not enter a USCIS facility if they have any symptoms of COVID-19, and visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies). Visitors must also wear facial coverings that cover both the mouth and nose when entering facilities, and visitors are encouraged to bring their own black or blue ink pens. Attorneys will be permitted to accompany their clients or attend an interview telephonically. Naturalization ceremonies will be shorter to limit exposure to those in attendance. However, all legally required portions of the ceremony will take place. Attendance is limited to the naturalization candidate and individuals providing assistance to disabled persons.
While adjustment of status cases are not subject to the Presidential Proclamation, no specific guidance has been provided by USCIS regarding the rescheduling of cancelled interviews or the first time scheduling of interviews for newer cases, now that field offices have reopened. There have been some reports that USCIS is giving priority to naturalization cases. Clients will have to continue to wait.
USCIS Resumes Premium Processing
USCIS has resumed premium processing for all Form I-129 and I-140 petitions, having phased in the process during the month of June. Petitioners who had already filed Form I-129 or Form I-140 using the premium processing service before the March 20 suspension, but who received no action and a refund, may refile their Form I-907 consistent with the timeline above, barring any changes USCIS may announce in the future.
While asylum offices have reopened for previously scheduled interviews, they remain closed for walk-in assistance and noninterview inquiries. Interviews that were scheduled during temporary closures will automatically be rescheduled. Asylum offices are expected to conduct video-facilitated interviews, where the applicants sit in one room and the interviewer in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative can fully and safely participate in the interview while maintaining social distancing.
ICE and Interior Enforcement
According to its website, ICE will continue to only prioritize cases involving foreign nationals who are public-safety risks or who are subject to mandatory detention based on criminal grounds. In-person office and home visits have been temporarily been suspended; however, telephonic and electronic reporting still remains in use. ICE has continued to promise not to make arrests at or near medical facilities, absent extraordinary circumstances. Social visits for ICE detainees continue to be unavailable at this time.
DHS has also announced that it is extending its flexibility in rules related to Form I-9 compliance during the pandemic by an additional 30 days. These include prosecutorial discretion to defer the physical-presence requirements associated with Form I-9 and an additional 30-day extension for notices of inspection (NOIs) served in March 2020. The expiration date for these accommodations is now July 19, 2020. Identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.
CBP and Border Enforcement
Unauthorized border crossings along the U.S. border with Mexico have dropped by 50 percent in April, according to federal statistics. CBP officers have detained and expelled migrants at the border, bringing detentions down from about 3,000 to 100. Among the expedited expulsions are hundreds of unaccompanied minors. Under law, these unaccompanied children should be taken to shelters run by Health and Human Services until they can be placed with a guardian in the United States. It appears that the Trump Administration wants to circumvent the legal protections afforded to unaccompanied minors, which they have offensively decried as “loopholes.”
Visa Waiver travelers who are unable to depart because of COVID-19 may still apply for 30-day extensions of their admission periods by contacting any local CBP port of entry or deferred-inspection site.
Department of State and U.S. Embassies Abroad
Routine immigrant and nonimmigrant visa services remain canceled; however, emergency services are available for air and sea crews, medical personnel treating or mitigating the effects of COVID-19. Likewise, services remain available for U.S. citizens abroad.
Department of Justice and the Immigration Courts
With the exception of the Honolulu Immigration Court, Immigration Courts remained closed for nondetained hearings. The Boston, Buffalo, Dallas, Hartford, Las Vegas, Memphis, and New Orleans Immigration Courts are scheduled to resume nondetained hearings on June 29, 2020. Hearings in nondetained cases at all other immigration courts are postponed through, and including, Thursday, July 2, 2020. All immigration courts will be closed Friday, July 3, 2020, in observance of Independence Day. Receipt stamps continue to be issued for defensive applications, motions, pleadings, and evidentiary filings. Similarly, the BIA continues to accept notices of appeal, briefs, and motions.
According to a June 11, 2020, EOIR policy memorandum, all visitors of immigration courts are required to wear face coverings, except for children under two years of age. Visitors who do not wear face coverings or observe social distancing will be denied access to EOIR space. EOIR has also announced that it will no longer accept email filings 60 days after the court has resumed nondetained hearings.
Department of Labor
The Department of Labor’s Office for Foreign Labor Certification (OFLC) will continue to issue notifications via email. On June 16, 2020, the OFLC extended the period during which the Atlanta National Processing Center will issue PERM Labor certification documents electronically through September 30, 2020. Initially this period was from March 25, 2020 through June 30, 2020.
The OFLC officially confirmed on May 20, 2020 that despite various state requirements for employees to remain at home under the pandemic, the Notice of Filing is required to be posted physically, stating the notice must be “visible” and posted “where U.S. workers can readily read the posted notice on their way to or from their place of employment” and such requirements cannot be replaced by other electronic means (unlike H-1B posting requirements). Therefore, employers may not be able to meet posting requirements until employees are working back in the workplace.