Immigration Alert: Presidential Proclamation Temporarily Suspending Entry of Certain Nonimmigrants is Effective TODAY

Jun 24, 2020

Diane Metzger Photo Diane E. Metzger,  Melanie Gurley Keeney

As anticipated, on Monday, June 22, 2020, President Trump  issued a Presidential Proclamation (also referred to as Executive Order) that temporarily suspends entry into the United States of certain foreign nationals seeking to enter in the following visa categories:  H-1B (specialty occupation workers), H-2B (seasonal non-agricultural workers), L-1 (intracompany transferees) and certain J-1 visa holders (intern, trainee, teacher, camp counselor, au pair, or certain summer work travel program workers).  This temporary suspension on entry also applies to the dependents of visa holders in these nonimmigrant visa classifications. The full text of the Proclamation can be found here:   https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/   The provisions of the Proclamation relating to the suspension of entry became effective as of June 24, 2020 at 12:01 a.m. EDT.

The restrictions set forth in the Proclamation do not apply to individuals who are physically present in the U.S. as of the effective date of the Proclamation.  Rather, the provisions of the Proclamation that temporarily suspends entry for H-1B, H-2B, L-1, and certain J-1s only apply to those who are:

  1. Outside the U.S. on the effective date of the Proclamation;
  2. Who do not have a valid nonimmigrant visa on the date of the Proclamation; and
  3. Who do not have and official travel document other than a visa, such as a transportation letter or advance parole.

The Proclamation does not apply to  lawful permanent residents (green card holders), or to most immediate family members of U.S. citizens and lawful permanent residents.

The Proclamation also exempts certain foreign nationals seeking to enter the United States.  These exceptions include the following:

  1. Those individuals who will provide temporary labor or services essential to the United States food supply chain;
  2. Those individuals  whose entry would be in the national interest (including those critical to  the defense of the U.S., law enforcement, diplomacy, or national security of the U.S.), as determined in accordance with standards that will be created by the Secretary of State, the Secretary of Homeland Security, or their designees.
  3. Those individuals who are involved in treating patients who are hospitalized with COVID-19 or performing COVID-19 research; and
  4. Those individuals who are necessary to facilitate the immediate and continued economic recovery of the United States.

The determination of eligibility for entry or to request a visa pursuant to the national interest exception appears to be at the discretion of consular officers.  The Proclamation also includes certain “age out” provisions related to children of certain foreign nationals. The Proclamation also directs the Department of Labor (“DOL”) to consider promulgating regulations or taking “other appropriate action” to ensure that “aliens who have been admitted or otherwise provided a benefit” do not disadvantage U.S. workers.  It will be interesting to see how the DOL addresses these issues.  In addition, the Proclamation extends the suspension of consular processing of certain immigrant visas, restrictions which were enacted pursuant to President Trump’s April 2020 Presidential Proclamation on immigration.

We are in the process of analyzing the applicability of the Proclamation with regard to Canadian citizens, who are visa exempt.  In addition, while it appears that those individuals who are in the U.S. on June 24th in H-1B, H-2B, L-1, and certain J-1s may be able to travel abroad during the temporary period of suspension (if they have valid visa stamps in their passports), that interpretation has not been confirmed, and therefore travel abroad is not advised.

Immigration – The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.

Melanie Gurley Keeney practices in the areas of employment, immigration and education law. Melanie has been included in Best Lawyers in America ® for 25 years, and has been recognized in all areas of her practice. She also has been named to Missouri & Kansas Super Lawyers ® lists for over 10 years, and has been rated one of the top 50 female lawyers in Missouri and Kansas. She was named a “Top Missouri Lawyer” by St. Louis Magazine and Kansas City Magazine for Immigration Law. Melanie has been distinguished as Best Lawyers ®  St. Louis Immigration Law Lawyer of the Year in 2019, 2015, and 2012, and St. Louis Education Law Lawyer of the year in 2017. In 2016, Missouri Lawyers Weekly presented Melanie with the Women’s Justice Litigation Practitioner Award and in 2014, Washington University School of Law honored Melanie with the International Women’s Day Award for Employment Law. She has served as an adjunct professor at Washington University and is a frequent presenter on legal topics. Melanie is a founding Shareholder of the Firm and currently serves as the Chairperson of the Firm.

Diane Metzger practices in the areas of immigration law and employment law.  From large multi-national employers to small employers who have no prior experience with our nations’ complex immigration laws, Ms. Metzger represents and provides counsel to clients with a wide range of business immigration needs, including but not limited to obtaining non-immigrant visas (e.g. H-1B, L-1, TN, E, O); applying for permanent residency (e.g., PERM, Schedule A, EB-1); navigating the naturalization process; consular processing and other applications made directly with the U.S. Department of State; out-bound immigration matters when U.S. employees are transferred abroad; and family-based immigration through U.S. citizen relatives.

Ms. Metzger also assists corporate clients with preventive advice and counsel, including advice on immigration-related corporate reorganization issues and corporate compliance & due-diligence matters including, I-9s, E-Verify, and immigration-related audits.  Ms. Metzger regularly provides training to her clients.

Kristine Nazir represents corporations and institutions of higher education with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization.  Prior to joining the firm, Kristine clerked for the Honorable Jeffrey M. Geller at the Baltimore City Circuit Court and for the Department of Justice, Executive Office for Immigration Review at the Arlington Immigration Court. During law school, Kristine interned with the Department of Homeland Security, Immigration and Customs Enforcement, Office of the Principal Legal Advisor and National Security Law Section; the Superior Court of the District of Columbia; and Fragomen, Del Rey, Bernsen, & Loewy LLP. Before attending law school, Kristine also served in Peace Corps Mongolia as a community economic development volunteer.