By Donald W. Parker and John J. Gallini, Immigration Attorneys
The Proclamation further extends an earlier bar imposed on April 22, 2020 that suspended the entry of certain individuals who are outside the U.S. and are seeking to enter as immigrants to become lawful permanent residents of the U.S. This new Presidential Proclamation (“Nonimmigrant Travel Ban”) became effective at 12:01am on June 24th and will remain in effect until December 31, 2020. You can find the Proclamation here.
Who is affected?
The temporary ban only applies to persons seeking to enter the U.S. as an H-1B, H-2B, L-1, or J-1 nonimmigrant (as specified above), and their accompanying or following-to-join dependent family member spouses and children, and only if the each of the following three conditions are met:
- The individual is outside of the U.S. on June 24th;
- The individual does not have a nonimmigrant visa stamp in his/her passport that was valid on June 24th; and
- The individual does not have an official travel document in lieu of the visa (such as advance parole travel document, a transportation letter, or an appropriate boarding foil) that is valid on June 24th or issued on any date thereafter and that permits the individual to enter the U.S.
Who is exempted?
Exempted from the ban are the following groups of people:
- Foreign nationals who are outside of the U.S. on June 24th, who have already been issued a valid H-1B, L-1, J-1 or H-2B visa in their Passport – foreign nationals with a valid visa in one of these categories (and their spouses and children who also hold a valid dependent visa) can reenter the U.S.
- Foreign nationals who are in the U.S in H-1B, L-1, J-1 or H-2B visa status. These individuals will be able to remain in the U.S., continue working, extend their visa status and change to other visa status.
- Foreign nationals who are in the U.S. and seek to change their status from their current visa status to H-1B, L-1, J-1 or H-2B status. This group includes foreign nationals who were selected this year in the H-1B lottery process and whose H-1B petitions included a request for change of status from their current visa status (commonly F-1 student status) to H-1B.
The Proclamation also exempts from the ban foreign nationals who are –
- lawful permanent residents; or
- the spouse or child of a U.S. citizen.
Further, the Proclamation exempts from the ban foreign nationals who –
- will provide temporary services essential to the maintenance of the U.S. food supply chain; or
- whose admission is in the national interest of the U.S.
The Proclamation indicates that the above two exemptions will be adjudicated by Consular Officers at US Consulates abroad pursuant to standards that may be promulgated by relevant government agencies. The Proclamation provides as examples of activities that would be in the national interest of the U.S. the following:
- activities involving defense, law enforcement, diplomacy, and national security in the U.S.;
- the provision of medical care to hospitalized COVID-19 patients;
- medical research to help the U.S. combat COVID-19; and
- activities that will facilitate economic recovery in the U.S.
Possibility of Appeal
This latest Proclamation may be challenged in Federal Court in the weeks ahead and that process may put the Proclamation on hold. We will update our web site as additional information becomes available about the Proclamation and its implementation.
Frequently Asked Questions about the Nonimmigrant Travel Ban
Effective June 24th, 2020
Q: I am currently in the U.S. in valid H-1B or L-1 visa status and I also have a valid H-1B or L-1 visa in my Passport – does the Nonimmigrant Travel Ban apply to me?
A: No. Persons in the U.S. in valid H or L – as well as those in J-1 or H-2B status – can remain legally in the U.S. and continue to work during the validity of that status and can extend their status at the end of the validity period. In addition, because you have a valid H or L visa in your Passport, you can leave the U.S. and seek to reenter the U.S. using that visa during its validity. However, international travel is risky at this time, particularly with the COVID-19 pandemic, restrictions that the U.S. government has placed entry into the U.S. following travel to certain countries greatly affected by the pandemic, and also restrictions that other countries may impose on individuals who are seeking to enter their country from the U.S. Additionally, there is always the lingering possibility that the President will issue a new and more expansive proclamation or Executive Order to further restrict the entry of individuals who are not U.S. citizens, U.S. permanent residents. It will take some time before we know how U.S. Customs and Border Protection will deal with returning foreign nationals with valid H and L visas in the short term.
Q: I am currently in the U.S. in valid H-1B or L-1 visa status as reflected on my latest Form I-797. I do not yet have a new H-1B or L-1 visa in my passport. Does the Nonimmigrant Travel Ban apply to me?
A: Maybe. Persons in the U.S. in valid H, L, J-1 or H-2B status can remain legally in the U.S. and continue to work during the validity of that status and can extend their status at the end of the validity period. However, if you leave the U.S., the only way that you could return would be to apply for an H or L visa at a U.S. Consulate abroad. By its terms, the Nonimmigrant Travel Ban appears only to apply to persons who were physically outside of the U.S. when it went into effect (June 24, 2020) and who did not have a visa issued at that point. Since you were in the U.S. when the Travel Ban went into effect, it may be that the Nonimmigrant Travel Ban simply does not apply to your facts. It should be noted that because of COVID-19, U.S. Consulates are currently closed to most visa applicants, which makes securing a new visa nearly impossible. It is also possible that the U.S. State Department will interpret the Nonimmigrant Travel Ban to prohibit a visa application under these circumstances. As a result, we recommend that before you travel outside of the U.S. you contact your HR Team or legal counsel to confirm whether there are any risks in applying for the visa and returning to the U.S.
Q: I have an approved H-1B or L-1 visa petition and am outside of the U.S., but have not been able to apply for an H or L visa because of COVID-19. Can I apply for a visa once the U.S. Consulates open?
A: No. Unfortunately because you were outside of the U.S. when the Nonimmigrant Travel Ban took effect (on June 24th) and because you did not have at that time a valid H or L visa stamp in your passport, or otherwise possess a valid Advance Parole travel document, appropriate boarding foil or transportation letter) the Nonimmigrant Travel Ban would apply to you. You would not be able to apply for an H or L visa and come to the U.S. until the Nonimmigrant Travel Ban is lifted.
Q: I am currently in the U.S. in L-1B status valid until June of 2022. My wife is outside of the U.S. currently and she does not have a valid L-2 visa in her Passport. Does the Nonimmigrant Travel Ban apply to her?
A: Yes, it does apply. Even though you maintain your legal status in the U.S., because your wife does not have a valid L-2 visa in her Passport, she cannot apply for the visa now – and even if it were to be granted, she could not use it to enter the U.S. until the Nonimmigrant Travel Ban is lifted.
Q: I am currently in a working visa status other than H-1B, L-1, J-1 or H-2B. For instance, if I am in the US in O-1, TN, H-1B1 or E-3 status – does the Nonimmigrant Travel Ban apply to me?
A: No, the Nonimmigrant Travel Ban does not apply to these types of visas. However, as noted previously, international travel is risky at this time and immigration admission policies are constantly changing – usually for the worse, particularly during COVID-19. It may take some time for U.S. Customs and Border Protection and the U.S. State Department to implement their own procedures and policies.
Q: I am currently in the U.S. in H-1B status and although I don’t have a valid H-1B visa in my Passport, pursuant to a Green Card sponsorship by my employer and a pending I-485 Adjustment of Status Application, I have a valid Advance Parole document. Does the Nonimmigrant Travel Ban apply to me?
A: The Travel Ban specifically exempts from its application, foreign nationals traveling on an Advance Parole document. So while the Nonimmigrant Travel Ban may prevent you from applying for a new H-1B visa and/or reentering the U.S. on that visa (see Question #2), you could use your Advance Parole in place of the H-1B visa. But Note: The decision to move away from your H-1B status and enter the U.S. in Advance Parole may have other implications for your overall immigration case – accordingly, if you are in this situation, we advise that you contact your HR Team or legal counsel in advance of any travel using your Advance Parole.
Q: I am a Canadian national applying for admission in H-1B status to the United States, based on an approved H-1B petition obtained on my behalf by my employer – does the Nonimmigrant Travel Ban apply to me?
A: U.S. Customs, in response to written questions from the American Immigration Lawyers Association, has indicated that because Canadian nationals seeking to come to the U.S. in H-1B, L-1 or J-1 status do not need a visa in their Passport, they are not subject to the Nonimmigrant Travel Ban. It should be noted that this response was from one office of U.S. Customs & Border Protection and until there is a more official statement from the Department of Homeland Security or U.S. Customs, it is reasonable to expect that there may be differing interpretations of the application of the Nonimmigrant Travel Ban at different U.S./Canada border posts and international airports.
Q: The Travel Ban applies to me. Do I have any options to enter the U.S. before January 1, 2021?
A: Maybe. If you have a valid B-1/B-2 visa stamp or are eligible for visa-free travel to the United States using the Electronic System for Travel Authorization (ESTA) then you may be able to make brief business trips to the United States. During these trips, the normal visitor status and ESTA rules would apply, including the requirement that you not receive any U.S. remuneration other than a reimbursement for basic expenses like travel, lodging, food, and transportation. However, travelers from a number of countries, including many that qualify for ESTA, are currently banned from entering the US unless they have quarantined in a ‘safe’ third country for 14 days before attempting to enter the United States. If you are in this situation, we advise that you contact your HR Team or legal counsel in advance of any travel using a B-1/B-2 visa or ESTA.
Please contact any Parker Gallini immigration attorney to discuss this or any immigration issues at (781) 810-8990.
Immigration at Work 