In a bit of good news, CBP confirmed that the proclamation does not apply to visa-exempt Canadian citizens. Therefore, Canadians may still apply for admission and be admitted to the U.S in H-1B, H-2B, L visas and J visas.

The rumored proclamation by POTUS restricting nonimmigrant workers has been issued. The proclamation uses the cloak of the COVID-19 pandemic and the US’ abysmal response to restrict admission non-immigrants in the H-1B, H-2B, L-1 and J-1 (interns, trainees, teachers, camp counselors, au pairs, or summer work travel programs). All dependents of these foreign nationals are also restricted. To try and shed some light on this decree please find below are some FAQ and answers:

 

Q. When does it become effective?

A. On June 24 at 12:01 am

 

Q. How long is it for?

A. For now until the end of 2020 but subject to continuation

 

Q. Are all the foreign workers subject to the restrictions?

A. No. Only H-1B, H-2B, L-1 and J-1 (interns, trainees, teachers, camp counselors, au pairs, or summer work travel programs) and their spouses and minor children traveling to accompany or follow to join such visa holder.

 

Q. What about Foreign Nationals (FNs) already in the U.S.?

A. The proclamation applies only to foreign nationals who are outside of the U.S. at the effective date.

 

Q. Are there exceptions and exclusions?

A. Yes, there are. Below are the main ones. The proclamation shall not apply to:

• Anyone already in the U.S. at the effective date
• Anyone already having a valid visa in their passport at the effective date
• Anyone who has a travel document such as advance parole or boarding foil on the effective date
• Anyone seeking to enter the U.S. temporarily to provide services or employment essential to the U.S. food supply chain
• Anyone whose entry is in the national interest of the U.S. These will include (at the government discretion):
  • Anyone critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • Anyone involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • Anyone involved with the provision of medical research at United States facilities to help the United States combat COVID-19;
  • Anyone necessary to facilitate the immediate and continued economic recovery of the United States.
  • Children who may age-out because of the proclamation.

Q. Who will decide if anyone’s case is in the national interest?

A. Looking at the group of FNs subject to this proclamation, it is almost certain that the consular officer interviewing visa applicants would make the determination.

 

Q. What do you think would be some matters that businesses could demonstrate that admission of anyone in the restricted classifications is in the national interest?

A. Businesses in the defense, law enforcement, food supply and healthcare seem to have a fairly clear carve-outs. For other businesses the most likely grounds for exception would be economic recovery and  job creation or maintenance. Businesses that can demonstrate that the FNs they seek to bring are key to the business’ ability to operate and keep employing U.S. workers would likely have a good case for exemption. Since this is the common scenario. There is hope.

 

Q. Does this proclamation have an end date?

A. It is set to expire on 12/31/2020 but subject to extension.

 

Q. What would determine if the proclamation validity be extended?

A. the degree of economic recovery, unemployment rates and most importantly, the results of the general elections in November.

 

Q. Looking at the proclamation it seems very long and has some seemingly additional restrictions and conditions. What are these?

A. By-and-large these provisions seem to be verbiage aimed to placate POTUS’ anti-immigrant base. Most, if not all, of these measures are already in place and unlikely to result in immediate additional effects.

 

Q. The proclamation mentions additional conditions on EB-2 and EB-3. That employers will have to show they will not disadvantage U.S. workers. What is this?

This is called labor certification that all EB-3 and most EB-2 (other than NIW where it is shown that it is in the interest of the U.S. to waive the labor certification).

 

Q. Would the proclamation specifically affect me / my family / my employees?

A. I do not know. This FAQ provide general information and not legal advice for any particular case. Make sure to consult a competent lawyer with your specific concerns if you have any. DO NOT RELY ON THESE FAQ, they are here to highlight the general issues – not resolve your or anyone’s particular case.

 

Q. Do you have an estimate how bad the immediate effect of this proclamation be?

A. Not too much. Most FNs subject to the proclamation have been, for many months now, unable to obtain a visa due to the wholesale closure of U.S. Consular posts abroad. Consular staff, unlike other government employees provide no services remotely. As such, Canadians who are visa exempt may be the major group needing to worry. In the case that U.S. consular posts would resume services the effect of the proclamation will become noticeable. In light of the intensifying waves of coronavirus infections in the U.S. and in many other countries, the prospects of this happening anytime soon for a sustained period are dubious.

 

Q. Are there likely to be court challenges to this proclamation?

A. It is possible. The language of the proclamation suggests it is predicated on specious basis, namely that FNs take jobs from American workers. Federal courts, including the U.S. Supreme Court have repeatedly rebuked the administration for failures to consider its decisions properly and lawfully. There are no evident signs that better processes and procedures took place this time.

 

Q. What to do next?

A. If you have any concern, consult an attorney. If you are a U.S. citizen vote in November and most importantly stay safe and healthy.

Foreign nationals holding work visas who happen to be outside of the U.S. should consider quickly make their way to the U.S. because it seems like the administration is planning to issue very soon a proclamation that would curtail admission of people in various work, training and student visas.

Below are some FAQs to help you get the information

Q: Why?

Current POTUS has already previously used proclamations and executive orders to hurt foreign nationals, their families, and their employers and seem bent on continuing to do so. These administrative measures can become effective immediately with no transition period or advance notice. In his last proclamation POTUS indicated restrictions are to come for nonimmigrants in employment visas. H-1B, H-2B, L-1, F-1 and certain J-1s are the likely targets.

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