Executive Order Temporarily Suspending Certain Work Visas to the U.S. and Extending Prior Suspension of Immigration

UPDATE 06/25/2020 The June 22nd Presidential Proclamation left a lot of uncertainty for many individuals who are holding H-1B, L, of J status but who do not customarily need a visa to travel to the U.S. in that status, such as Canadian citizens.  After follow-up inquiries, the U.S. Customs and Border Protection (CBP) clarified that the June 22nd Presidential Proclamation suspending H, L, and J visas does not apply to Canadian citizens because they are visa-exempt.

On April 22, 2020, President Trump issued an executive order temporarily suspending immigration to the U.S. of certain categories of immigrants.  At the time, only individuals seeking permanent residence (green card) were negatively affected, although the President directed the federal agencies to make recommendations for suspending temporary work visas as well at a later time.  The April 22^nd order was set to expire within 60 days. 

On June 22, 2020, upon the expiration of the prior order, President Trump issued a new proclamation extending the prior suspension on immigrant visas until December 31, 2020.  We  previously discussed President’s Trump order suspending immigrant visas in more details here.  The same category of individuals affected in the original April 22^nd proclamation remain affected under the new order, with the new suspension in effect for the rest of the year 2020.  In addition, the President has ordered the applicable government agencies to recommend additional modifications every 30 days between now and December 31^st. 

The June 22^nd proclamation also orders the suspension of temporary work visas, not just immigrant visas, particularly H-1B, H-2B, J, and L visas, as well as their derivative family members.  These restrictions take effect at 12.01 a.m. ET on June 24, 2020 and are to be in effect until December 31, 2020. 

The June 22, 2020, presidential proclamation, suspends the following:

• entry into the U.S. of any individual with a new H-1B visa
• entry into the U.S. of any individual with a new H-2B visa
• entry into the U.S. of any individual with a new H-4 visa
• entry into the U.S. of any individual with a new L-1 visa
• entry into the U.S. of any individual with a new L-2 visa
• entry into the U.S. of any individual with a new J-1 visa for interns, trainees, teachers, camp counselors, au pairs, or summer work/travel
• entry into the U.S. of any individual with a new J-2 visa, if the principal J-1 is for interns, trainees, teachers, camp counselors, au pairs, or summer work/travel

The H-1B, H-2B, H-4, L-1, L-2, J-1 and J-2 suspensions listed above only apply to individuals who are outside of the U.S. on the date of the proclamation (June 22, 2020), and who do not yet have a valid, unexpired H, J, or L visa already in their passport, or other valid travel document that would allow their admission to the U.S.

This executive order and H, J and L visa suspensions does not apply to:

• individuals already present in the U.S. who are seeking extension or change of their existing status
• individuals seeking a new J-1 visa for programs not listed in the proclamation, such as physician, government visitor, international visitor, professor and research scholar, short-term scholar, specialist, or student
• individuals seeking to provide temporary labor or services essential to the U.S. food supply chain
• spouses or children of U.S. citizens
• individuals whose entry would be in the national interest of the U.S. as determined by the federal government

The U.S. Department of State, Department of Labor, and Department of Homeland Security are ordered to establish standards defining the type of individuals whose entry would be considered “in the national interest” that would be exempted from the prohibitions of this proclamation.  These categories of individuals should include those who are critical to the defense, diplomacy, national security or law enforcement; those providing healthcare to COVID-19 hospitalized patients; those involved in COVID-19 research in U.S. facilities; or those who are deemed necessary to the United States’ continued economic recovery.

Although this proclamation does not suspend the processing and adjudication of applications to change or extend status for those already present in the U.S. (including H-1B cap-subject petitions for fiscal year 2021), the proclamation does direct the Department of Homeland Security to promulgate regulations or take other action to ensure the presence of H-1B workers does not disadvantage U.S. workers.  It is noteworthy that existing U.S. law and regulation already requires H-1B employers to pay H-1B workers the prevailing wage or the wage customary paid to similarly situated U.S. workers, whichever is higher, specifically to ensure that U.S. workers are not disadvantaged or that the wage levels are not driven down.  It remains to be seen what other requirements or regulations the government agencies can develop without the intervention of Congress, while still complying with the law.

Please note that, as of March 20, 2020, U.S. Consulates all over the world suspended all visa interviews (except for emergency and special circumstances cases such as healthcare workers), in an attempt to practice social distancing and prevent the spread of COVID-19.  As of the date of this article, all U.S. Consulates remain closed for routine visa interviews.  Therefore, to the extent that the individuals negatively affected by the April 22^nd or June 22^nd executive orders would customarily need a visa interview before traveling to the U.S., those visa interviews have already been suspended since March 20^th.  Therefore, except for very limited circumstances, intending immigrants and non-immigrants to the U.S. not already in possession of a valid visa will not be able to secure a visa interview as long as the consulate visa services remain closed, regardless of the President’s April 22^nd or June 22^nd executive orders.

We will continue to monitor the developments surrounding the President’s executive orders suspending immigration and we will provide updates as applicable. In the meantime, if you have any questions regarding visas or immigration to the U.S., please contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.