Tag Archives: travel suspension

COVID-19 Update: Executive Order Extends Suspension of Entry of Certain Immigrants AND Suspends Entry of H-1B, H-2B, J and L Visa Applicants and Derivative Beneficiaries, Up to December 31

On June 22, President Donald Trump signed an Executive Order titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. The suspension affects both immigrant visa and nonimmigrant visa applicants in certain categories. It is set to expire on December 31, and may be continued if deemed necessary.

Who Does the Executive Order Affect?

Effective immediately, the Executive Order continues the suspension of entry of certain immigrants to the United States up to December 31, 2020. To learn more about the prior order suspending immigration and the exemptions, which now remain in effect, see COVID-19 Update: Impact of Executive Order Temporarily Suspending Some U.S. Immigration for 60 Days, As of April 23.

From June 24, the Executive Order further prohibits the entry of nonimmigrants to the United States on an H-1B visa, H-2B visa, J  visa (for intern, trainee, teacher, camp counselor, au pair, summer work travel program) or L visa, and the spouses and minor children of such visa applicants or holders, who:

(a) are outside the United States on the effective date (June 24);

(b) do not have a nonimmigrant visa that is valid on the effective date; and

(c) do not have an official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.

If you do not have an H-1B, H-2B, J or L visa or accompanying or following-to-join visa (H-4, J-2 or L-2 visa) that is valid as of June 24, 2020, you will not be admitted into the United States during the suspension period (i.e. up to December 31, 2020). The exception is if you fall into a category that is exempted from the Order.

[UPDATE, July 23, 2020: The U.S. Department of State announced exceptions to the Presidential Proclamation may be given to the dependent spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to the suspension. The DOS will continue to issue H, L, and J  visas to otherwise qualified derivative applicants who are currently excepted or where the principal applicant is already in valid status in the United States.  If the H, L or J principal is in the U.S. in valid status, the dependent spouse or child may apply for their derivative visa at the U.S. Consulate and enter the U.S. If the H, L or J principal is outside the U.S. with a valid visa, the dependent spouse or child may apply for their derivative visas and enter the U.S. with the principal visa holder.]

Who is Exempted from the Executive Order?

Section 3(b) of proclamation states the Order does not extend to:

(1) Any lawful permanent resident of the United States.

(2) Any applicant who is the spouse or minor child of a U.S. citizen.

(3) Any applicant seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain.

(4) Any applicant whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall establish standards to define categories of applicants whose entry would be in the national interest, such as those who are critical to the defense, law enforcement, diplomacy, or national security of the United States; are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of 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.  

What is the Stated Purpose of the Executive Order?

Trump said the Executive Order is needed to protect American workers in an economy severely affected by the COVID-19 outbreak.

The Order states overall unemployment rate in the United States nearly quadrupled between February and May 2020. It notes, “Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers.”

What is the Impact of the Executive Order?

Based on a plain reading, the Executive Order does not specifically prohibit the U.S. Consulate from accepting H-1B, H-2B, J or L visa applications or derivative visa applications. It also does not stop USCIS from adjudicating the underlying petition (e.g. Form I-129) that, if approved, allows the applicant to request the visa.

If a person pays the visa application fee and is scheduled for a visa interview, the U.S. Consulate is expected to process the application. If USCIS issues a receipt notice for the petition, it has a duty to process it.

But due to the newness of the Executive Order, ambiguities in the Order itself, and the lack of U.S. Department of State guidance, it’s uncertain whether the U.S. Consulate may or will issue such visas before the suspension period expires.  

In general, the Order is confusing in large part because it extends the previous order suspending the entry of certain immigrants, while creating a new suspension for certain nonimmigrants. Thus, lawful permanent residents are listed among the exempted group.

Without careful review, a reader might question why the Order mentions permanent residents when, at first glance, it seems to focus on just H-1B, H-2, J or L visa applicants and their derivative beneficiaries. The lawful permanent resident category is also not a true exemption because they do not fall into any immigrant visa category subject to the suspension. Instead, they have green cards to be lawfully admitted to the United States as permanent residents, not as intended immigrants.

Although the Order focuses on suspending entries to the United States instead of on prohibiting visa processing at U.S. Consulates, it contains a sentence stating, “The consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation.” This suggests the consular officer will need to determine an exception exists before it may issue the visa, before December 31, to an otherwise eligible applicant.

The Order mentions the applicant must have an”official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.” The examples of an “official travel document,” as listed in the Order, are normally reserved for lawful permanent residents. For example, permanent residents may obtain a boarding foil, valid for 30 days or less, for a single entry, from the U.S. Consulate if their green card has been lost, stolen or destroyed.

What is clear from the Order is that applicants and their derivative beneficiaries will be prohibited from entering the United States (up to December 31) if they are outside the country and do not hold a visa valid as of June 24.

While it is reasonable to assume the person may either have a valid visa as of June 24 or other official travel document as of June 24 or later — for entry to the U.S. during the suspension period — the Order is ambiguously worded. It seems to indicate you need both a visa and official travel document, which makes no practical sense. A reasonable person would conclude that only one is required, i.e. you need the travel document only if you do not have the visa, and vice versa.

The U.S. Customs & Border Protection (CBP) has long held authority to deny admission at the U.S. port of entry, even when the applicant holds a valid visa or other official travel document. Each time you request entry to the United States, you are subject to inspection by CBP.

The Order adds, “Within 30 days of the effective date of this proclamation and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Persons who are already in the United States, in lawful status, should consider filing a request for extension or change of status, if eligible, instead of depart for consular processing. USCIS is performing mission critical duties even while Field Offices are still preparing to reopen to the public. The Order has no effect on Form I-485 applications for green card/permanent residence or Form I-129 petitions or Form I-539 applications for extension or change of status within the United States.

Avoid coming to the U.S. in another status purely to circumvent the Executive Order. For example, if you enter the U.S. on a B1/B2 visitor visa, for the purpose of changing to H-1B or L-1 status, this may be considered as fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit. This subjects you to being charged with a permanent inadmissibility ground under INA 212(a)(6)(C)(i). In that event, you may not obtain a new visa or change of status without the appropriate Form I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver of inadmissibility.

The Order further states, “An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.”

Consult an experienced U.S. immigration attorney to discuss how this Executive Order, prior Orders and other travel restrictions affect your case.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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COVID-19 Update: U.S. Travel Suspension Expands to Include Immigrants and Nonimmigrants from Brazil

In response to the COVID-19 pandemic, there is one more Presidential Proclamation expanding the suspension of international travel to the United States. With certain exceptions, foreign nationals (immigrants and nonimmigrants) who have been in Brazil during the 14-day period prior to their scheduled arrival will be barred from entering the United States.

As of May 23, the World Health Organization reported that Brazil had 310,087 confirmed cases of COVID-19, which is the third highest number of confirmed cases in the world.

The travel restriction went into effect at 11:59 p.m. eastern daylight time on May 28, 2020. It does not apply to a U.S. citizen or to:

  • a lawful permanent resident of the United States
  • a spouse of a U.S. citizen or lawful permanent resident
  • a parent or legal guardian of a U.S. citizen or lawful permanent resident (who is unmarried and under the age of 21)
  • a sibling of a U.S. citizen or lawful permanent resident (provided that both are unmarried and under the age of 21)
  • a child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to an IR-4 or IH-4 visa
  • a foreign national who is traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus
  • a foreign national who is traveling on a C-1, D, or C-1/D nonimmigrant visa as a crewmember or otherwise traveling to the United States as air or sea crew
  • a foreign national seeking entry or transit with the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories)
  • a foreign national traveling within the scope of section 11 of the United Nations Headquarters Agreement
  • a foreign national whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee
  • a foreign national whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
  • a foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees
  • a member of the U.S. Armed Forces and his/her spouse and children

Click here for a full text of the proclamation.

This is the fifth Presidential Proclamation suspending travel due to the COVID-19 outbreak. The previous proclamations suspended travel from China, Iran, the Schengen Area, and United Kingdom and Ireland.

As travel suspensions under the Presidential Proclamations continue, the U.S. Embassies and Consulates remain closed for routine visa services. The U.S. Department of State has yet to announce procedures for reopening the Embassies and Consulates. Except for emergency services, most embassies and consulates are not currently scheduling in-person appointments.

For updates, check the individual website of the U.S. Embassy or Consulate in your area. Each embassy and consulate will schedule and reschedule visa interview appointments on its own timeline. Following the resumption of routine services, Immigrant Visa applicants will receive a new interview notice. In nonimmigrant visa cases, you will typically need to initiate the scheduling with the U.S. Embassy or Consulate.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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U.S. Travel Suspension – Due to COVID-19 (Coronavirus) Outbreak – Expands to Include Visitors from 26 European Countries

With the World Health Organization declaring the COVID-19 outbreak a pandemic, there is one more Presidential Proclamation expanding the suspension of international travel to the United States. With few exceptions, foreign nationals (immigrants and nonimmigrants) who have been in certain European countries will be subject to the travel restrictions.

As of Friday, March 13, 2020, the United States will suspend the entry of most immigrants and nonimmigrants who have been in the Schengen Area at any point during the 14 days prior to their scheduled arrival in the United States. These European countries include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. The list does not include the United Kingdom or Ireland.

[UPDATE: Effective March 16, 2020, another Presidential Proclamation suspends the entry of most immigrants and nonimmigrants who have been in the United Kingdom and Ireland during the 14 days prior to their scheduled arrival in the United States.]

This proclamation is effective at 11:59 p.m. eastern daylight time on March 13. It does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to the cut-off time.

The travel restriction does not apply to a U.S. citizen or to:

  • a lawful permanent resident of the United States
  • a spouse of a U.S. citizen or lawful permanent resident

  • a parent or legal guardian of a U.S. citizen or lawful permanent resident (who is unmarried and under the age of 21)

  • a sibling of a U.S. citizen or lawful permanent resident (provided that both are unmarried and under the age of 21)

  • a child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to an IR-4 or IH-4 visa

  • a foreign national who is traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus

  • a foreign national who is traveling on a C-1, D, or C-1/D nonimmigrant visa as a crewmember or otherwise traveling to the United States as air or sea crew

  • a foreign national seeking entry or transit with the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories)

  • a foreign national traveling within the scope of section 11 of the United Nations Headquarters Agreement

  • a foreign national whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee

  • a foreign national whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

  • a foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees

  • a member of the U.S. Armed Forces and his/her spouse and children

Click here a full text of the proclamation.

There are two other pre-existing Presidential Proclamations suspending travel due to the COVID-19 outbreak, which have the same exceptions noted in the European Schengen Area Proclamation.They include

1. Travel Suspension – China: immigrants and nonimmigrants who were physically present within the People’s Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry into the United States. The proclamation went into effect on February 2. Click here for a full text of the proclamation.

2. Travel Suspension – Iran: immigrants and nonimmigrants who were physically present within the Islamic Republic of Iran within the past 14 days prior to their scheduled arrival in the United States. The proclamation went into effect as of March 2. Click here for a full text of the proclamation.

The stated purpose of these travel restrictions is to curb the spread of the outbreak. Crowded travel arenas, like airports, may increase your risk of exposure to COVID-19 ( SARS-CoV-2/coronavirus), if there are other travelers with COVID-19.

The characteristics of the illness, however, have not changed. Declaring an outbreak a “pandemic” means it has spread around the world beyond expectation, and not that it has become more dangerous to your health.

According to the Center for Disease Control (CDC), symptoms include fever, cough, and shortness of breath. Symptoms are relatively mild and most people recover within six days. People at higher risk for severe disease are older adults and people of any age with serious chronic medical conditions (such as heart disease, lung disease, or diabetes). The CDC recommends that persons at higher risk for COVID-19 complications avoid all cruise travel and nonessential air travel.

As the Trump Administration noted, these travel restrictions are temporary. In the meantime, U.S. Consular Services, particularly in China and Italy, have reduced dramatically due to limited staffing and the suspensions on travel.

The Presidential Proclamations also direct the Secretary of Homeland Security to implement standards and procedures at and between all U.S. ports of entry to regulate the travel of persons and aircraft to the United States to facilitate the orderly medical screening and, where appropriate, quarantine of persons who enter the United States and who may have been exposed to the virus. “Such steps may include directing air carriers to restrict and regulate the boarding of such passengers on flights to the United States.”

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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