On April 22, 2020, the White House issued an Executive Order that limited entry into the United States of certain individuals seeking to become legal permanent residents (i.e., green card holders). Since then, there has been talk regarding additional limitations for foreign nationals seeking employment in the United States, even on a short-term basis. On June 22, 2020, the White House issued this executive order.

What does this Executive Order do?

Citing high unemployment rates due to COVID-19, this executive order continues the restrictions of the prior executive order regarding certain immigrants.

In addition, the White House believes that additional measures need to be taken because “the present admission of workers within several nonimmigrant visa categories also poses a risk of displacing and disadvantaging United States workers during the current recovery.” (Unlike green card holders who would have unrestricted employment authorization, individuals entering the United States under certain nonimmigrant visa categories would have employment authorization for a very specific purpose, usually for a particular employer and a particular job.) According to the White House the “entry of additional workers through the H-1B, H-2B, J, and L nonimmigrant visa programs, therefore, presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

To whom does it apply?

This executive order applies to the following individuals who are currently outside of the United States and seeking to the enter in the following nonimmigrant visa classifications:

  • H-1B (specialty occupation classification where the job requires at least a bachelor’s degree in a very specific field of study);
  • H-2B (non-agricultural seasonal workers);
  • J-1 (specifically of the following classes: intern, trainee, teacher, camp counselor, au pair, or summer work travel program)
  • L-1 (individuals who have been working abroad for an affiliate entity, either are senior level managers or executives or have specialized knowledge of a company’s products/procedures, and are being transferred temporarily to the United States);
  • Individuals accompanying any of the above (i.e., spouse and children); and
  • Those already impacted by the prior order (i.e., immigrants)

And only if all of the following conditions are met:

  • The individual is outside of the U.S. (to be clear - those who are already in the United States in any of the above nonimmigrant visa categories are not subject to the executive order);
  • The individual does not already have a nonimmigrant visa stamp in his/her passport at the time this order takes effect; and
  • The individual does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid at the time this order takes effect or issued on any date thereafter that permits the individual to enter the U.S.

To whom does it not apply?

The executive order does not apply to those individuals already in the United States. The executive order also does not apply to anyone within the following categories:

  • Lawful permanent resident of the United States (i.e., green card holders);
  • Spouse or child of a US citizen;
  • Individual entering the U.S. “to provide temporary labor or services essential to the United States food supply chain;”
  • Individual whose entry “would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.” Factors here include “critical to defense, law enforcement, diplomacy, or national security of the United States;” “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.”

The order does not mention other nonimmigrant visa categories such as TN, H-1B1, E-3, E-1, E-2, or O-1. The logical conclusion is that such nonimmigrant workers are not impacted by this current executive order.

When does it take effect?

The executive order takes effect at 12:01AM on June 24, 2020.

When does it expire?

The executive order expires on December 31, 2020, and may be continued as necessary.

Are there other concerns?

The executive order also directs the Secretary of Health and Human Services to provide guidance to the Secretary of State and Secretary of Homeland Security for implementing additional health measures. Further, the order directs the Secretary of Labor to work with the Secretary of Homeland Security to consider developing rules or take action to ensure that individuals seeking admission or a benefit pursuant to certain employment-based immigrant visas or the H-1B visa does not disadvantage U.S. workers. This includes taking additional measures regarding the efficient allocation of H-1B visa numbers so as not to disadvantage U.S. workers.

Please also be mindful that other travel restrictions are still in effect, including those that restrict entry into the United States if one has been in China, Iraq, Brazil, Ireland, the U.K., and any of the Schengen countries within the last 14 days. The above executive order should be read in the context of other restrictions and practical concerns such as the current closure of U.S. Consulates abroad that prevent one from even applying for an immigrant or nonimmigrant visa.

The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to determine if and how the above applies to you.