Important disclaimer: This blog post should not be taken as specific advice in any case. Any foreign national considering traveling must have their individual circumstances and plans reviewed by a lawyer.
October 13, 2020 update:
The Department of State made additional updates to its website regarding the application of injunction, limiting it to visa applicants with a relationship to one of the plaintiff organizations.
October 6, 2020 update:
As of October 1, 2020, court decisions had only affected the visa ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. However, on October 5, the Department of State made certain updates to its website which imply that it may apply the court order to non-plaintiffs, meaning that the effect is a lift of the H, L, and J visa ban across the board. The court decision is appealable, the COVID regional bans remain in place, and Embassies continue to have very limited scheduling due to COVID closures and safety precautions. We are monitoring this development closely.
August 12, 2020 update:
On August 12, 2020, the Department of State significantly expanded the list of possible exceptions to the visa issuance ban contained in Presidential Proclamation 10052, issued on June 22, 2020, expanding and extending Presidential Proclamation 10014 from April 22, 2020.
Visa Applications to Resume H or L Employment
The newly expanded exceptions allow for visa appointments for persons with certain expired visas who are seeking to resume U.S. employment. These applicants must be “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.”
Visa Applications for New H or L Employment
The exceptions also allow for certain new visa applications for employees in critical or essential roles, including healthcare professionals and researchers, travel supported by U.S. government agencies, and, notably “technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.” Requirements for this final criteria are as follows:
For new H-1B applicants, the criteria are as follows (and 2 out of the 5 possible factors must be met):
Employer has as continued need for services (Embassy will first look to LCA approval date to determine this factor);
Applicant “will provide significant and unique contributions to an employer meeting a critical infrastructure need. Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems . . . .” as determined by either: a) senior or managerial role OR b) “job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company;”
Wage exceeds “prevailing wage” by 15%;
Applicant has unusual or advanced expertise;
Denial will cause financial hardship to the employer.
For new L-1A applicants, the criteria are as follows:
“Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.”
In addition to showing “essentially,” applicants must meet two of the three factors:
Applicant will be a senior level executive or manager;
Applicant has been employed by the company for multiple years abroad (signifying undue hardship to company to re-train or replace);
Applicant “will fill a critical business need for a company meeting a critical infrastructure need.” (This requirement appears to be duplicative of the overarching criteria.)
For new L-1B applicants, the criteria are as follows:
“Travel as a technical expert or specialist meeting a critical infrastructure need,” which is demonstrated by meeting all three of the following factors:
“The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;”
“The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND”
“The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.”
Note that public health or government agency exceptions are available; other exceptions/exemptions are discussed in our original post, below. Exemptions are also available to corresponding dependent visas.
Ongoing Challenges for Visa Applicants
Many Embassies and Consulates worldwide are still closed or are limiting visa appointments to emergencies only due to the ongoing COVID-19 pandemic. Further, many Embassies and Consulates are limiting visa appointments to those who are also exempt from the various COVID-related visa bans. The August 12 guidance also noted that applicants and/or dependents not subject to the ban (because they were present in the U.S. on the date it took effect, or they had/have a valid visa) will not be prevented from being issued visas, but ongoing Embassy and Consulate closures have significantly limited anyone’s ability to apply for visas at this time.
Original Post follows, as last updated 8/5/2020 at 8:30 AM PT:
Presidential Proclamation 10052, issued on June 22, 2020, expanding and extending Presidential Proclamation 10014 from April 22, 2020 (“visa ban”), is available at https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/. The Proclamation took effect at 12:01 a.m. EDT on Wednesday, June 24, 2020, and will remain in effect through December 31, 2020 unless/until paused by litigation. The Proclamation, like many of the prior ones, is a visa issuance ban, so existing visa holders, including those seeking in-country extensions and changes-of-employer, are NOT affected.
Affected Categories:
Categories affected are NEW H-1B, J-1, and L-1 visa issuances, including visa renewals, along with the corresponding spouse/dependent visas (H-4, J-2, L-2). (Note that certain exceptions or exemptions are discussed further below.) On July 17, 2020, the Department of State issued guidance that if an H-4, J-2, or L-2 seeks to “follow to join” a principal already in the U.S., they may apply for those visas. Further, if a new H-1B, J-1, or L-1 visa is issued pursuant to an exemption or exception, their dependents accompanying or following to join may also apply for visas.
Unaffected Categories:
B-1s, B-2s, H-1B1s, E-2s, E-3s, F-1s, J-1 researchers, O-1s and TNs (and the dependent visas) are all not affected by the ban (note: AILA liaisons have confirmed that H1B1s are not included in the ban, and JSP has confirmed with various J-1 sponsors that Canadians may be issued DS-2019s).
Exceptions to the H, L, J Visa Ban:
Exceptions to the H-1B, J-1, and L-1 visa ban include:
Anyone who already has an unexpired visa or travel document, such as advance parole (but note that if such document expires, the agency guidance is unclear as to whether a new application may be made);
Lawful permanent residents;
A spouse or child of a U.S. citizen;
Any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain;
Any foreign national whose U.S. entry would be in the national interest (e.g., medical workers, COVID-related, contributing to the U.S.’s economic recovery, as well as other areas to be established**); and
Canadians, who are visa-exempt (note: CBP has confirmed to American Immigration Lawyers Association’s liaisons that Canadians are exempt from the Proclamation).
**Additional exceptions/exemptions based on “National Interest:”
On July 17, 2020, the Department of State issued additional guidance for applications who would be allowed to apply for visas where their entry would be in the national interest, including:
H-1B healthcare professionals or researchers, including travel to alleviate “secondary effect[s]” of the pandemic;
H-1B workers supporting U.S. government contracts or essential for U.S. foreign policy reasons;
J-1 visas including certain au pairs, interns and trainees in government training programs, and certain teachers;
L-1 visas for travel related to healthcare or research particularly if COVID-related; including travel “to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic"; and
Again, H-4, L-2, and J-2 dependents accompanying or following to join an H-1, L-1, or J-1 principal.
Challenges to the Visa Ban:
This Proclamation will be subject to litigation and review by the court system. The first lawsuits have already been filed, some challenging parts of the ban, and at least one lawsuit challenging the entire ban. In the primary lawsuit challenging the entire ban (Gomez v. Trump), plaintiffs filed a request for a preliminary injunction on July 31, 2020.
COVID-related Embassy Closures and Travel Bans:
Currently, most Embassies and Consulates are not regularly issuing visas due to COVID closures and various COVID-related travel bans (Europe, Brazil, China, etc.) remain in effect.
As mentioned above, any foreign national seeking to apply for a visa or travel should receive case-specific advice. We will be reaching out to strategize these ongoing changes with clients; thank you for your patience!
Previous updates follow.
6/22/2020 2:45 PM PT: The order is out and we are reviewing it now: https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
6/22/2020, 2:10PM PT: We are seeing lots of reports in the news of an order going into effect today, but no actual order has been posted as of this writing.
6/22/2020, 12:45PM PT: We are monitoring for the text of the rumored signed order and will post an update ASAP after it is posted. We believe it may affect H, L, and J categories with certain exceptions and will not affect existing visa holders.
© Jewell Stewart & Pratt PC 2020
