Analysis: COVID Immigration Ban 2.0 – Proclamation Suspending Immigration and How it Affects You

By: Vishal Chander

Around 5:00 pm on June 22, 2020, The White House issued an Executive Order entitled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” which suspends the entry of H-1B, H-2B, J, and L visa holders until December 31, 2020 and extends the April 22 ban on the issuance of immigrant visas (green cards) by U.S. consulates until December 31, 2020.   The proclamation is effective on June 24, 2020.

The proclamation states specifically that it only applies to aliens who are outside of the United States, do not have a valid nonimmigrant visa, AND do not have another travel document that is valid on the effective date of the proclamation. The order also excludes lawful permanent residents, spouses and children of U.S. citizens holding visitor visas, aliens who provide services essential for the food supply chain, and any alien whose entry would be in the national interest.  The proclamation requires the Secretaries of Homeland Security, State, and Labor to recommend modifications within 30 days of the order becoming effective and every 60 days thereafter. 

The proclamation orders agencies to establish standards to define who may be in the national interest.  This includes those who are critical to defense, law enforcement, diplomacy, national security, medical care to individuals who have contracted COVID-19 and are hospitalized, medical research at United States facilities to help the United States combat COVID-19, or are necessary to facilitate the immediate and continued economic recovery of the United States. 

The order also grants discretionary authority, modifying Proclamation 10014 issued April 22, to issue nonimmigrant and immigrant (LPR) visas for children who might lose immigration benefits because they are too old (age out). This discretionary exception opens the door to many families who have children who are going to be 21 years old.

The order prioritizes the deportation of aliens who may use fraud or misrepresentation to get around the executive order.

The order adds a few additional points.  First, it orders relevant agencies to issue guidance to reduce the risk that aliens entering the United States may spread coronavirus.

Second, the order commands the Department of Labor to issue new regulations which will impact those that hold EB-2 and EB-3 green cards and H-1B holders, or those who are attempting to seek those benefits. 

Third, the order commands that aliens are prohibited from any immigration benefit until registered with biographic and biometric information.

Fourth, the order commands issuance of regulations for more efficient allocation of H-1B visas, so that the visas do not affect U.S. workers.

The Order Should Not Affect Those with Visas and Those Lawfully Present Now

The order WILL NOT bar H-1B, H-2B, J-1, or L-1 visa holders who currently have a valid visa inside of their passport.  So long as there is a valid visa issued on or before June 24, 2020, foreign nationals should be able to travel to the United States using the visa.

The order will also result in U.S. consulates refusing to issue H-1B, H-2B, J-1, and L-1 visas.

The order will bar those who might have completed their visa appointment but have not received their passport back yet.  Those who receive passports from consulates containing valid visas before June 24 should be able to enter the United States using their visa.

The order should not affect those who are in the United States on F-1 or OPT status currently seeking change of status to H-1B. 

It is unclear to me how the order will affect Canadian nationals reentering the United States on H-1B status.  Canadian nationals travel to the United States visa-free and are not issued a travel document.  Nevertheless, Canadian nationals could be prohibited from entering the United States on new H-1B or L‑1 status under the promulgation.

Exceptions for Food Supply Chain and National Interest Workers

The order grants DHS and the Department of State discretion to determine whether an alien will provide temporary labor or services essential to the United States food supply chain.  The order requires immigration agencies to establish standards for national interest workers. 

The exception for health care workers is careful to cover only those who provide medical care to those who are hospitalized with coronavirus or who are involved in medical research to help the United States combat coronavirus.  This language may exclude medical researchers who work for international agencies like the WHO.

Discretionary Exception to Protect Children Aging Out

The order creates a discretionary exception for nonimmigrant and immigrant (permanent resident) visas allowing consideration of cases involving a child who may age out of the immigration benefit because the child is approaching the age of 21.  My opinion is that this discretionary authority cannot be implemented unless the principal (recipient of the nonimmigrant or immigrant visa) being issued the nonimmigrant or immigrant visa.  I can foresee consulates cruelly implementing this provision by granting visas to the principal and the minor child approaching 21, bur refusing a visa to the spouse and smaller children, breaking up the family.

Everyone Gets Fingerprinted

The order requires that all immigration beneficiaries submit biometric information.  This will mean that H-1B and L-1 beneficiaries, who typically do not submit fingerprints and photos, may need to attend appointments at USCIS Application Support Centers (ASC) before change of status petitions are granted.  This will significantly slow down the issuance of H-1B approvals because of the bottleneck created by the fingerprinting requirement.

Stricter Department of Labor Requirements and Slower H-1B Visa Issuance

The order commands the Department of Labor to issue new regulations regarding the H-1B, EB-2, and EB-3 programs to prevent the disadvantage of U.S. workers.  The order also calls for regulations affecting the issuance of H-1B visas. 

Order Will Encourage Offshoring and Permanent Loss of Jobs

If the coronavirus epidemic has taught us anything, it is that a lot of analytical and developer work can be performed from anywhere.  Work does not require an office anymore.  I predict we will see a quick shift towards offshoring of IT services to Canada and India.  Those jobs will likely never come back to the United States.  The order is effective until December 31, 2020.

Related Links

Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak

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