On June 22, 2020, the President issued the latest in a series of immigration-related presidential decrees.  This most recent proclamation further frustrates legal immigration under the guise of protecting a U.S. labor market reeling from COVID-19.  The decree specifically targets individuals (and their families) seeking to enter the U.S. in the following non-immigrant categories: H-1B, H-2B, J, or L.  Crucially, this proclamation does not affect individuals already within the U.S. who are seeking to change their status to these categories.  Further, individuals abroad who already had valid visas and appropriate travel documents as of June 24, 2020 are also exempt from the ban on entry.  Additional exemptions include spouses and children of U.S. citizens, individuals providing labor essential to the U.S. food supply, and individuals whose entry would be in the national interest (including, for example, those providing COVID-related medical care or research).     

The proclamation also extended the April 22, 2020 proclamation, which banned the entry of individuals under numerous categories of immigrant visas.  Both proclamations – and their attendant entry bans – now run through December 31, 2020.  While U.S. consular services worldwide generally remain closed due to COVID-19, the potential impact of this proclamation is significant.  Employers who were successful in the FY 2021 H-1B lottery, and were anticipating the arrival of H-1B beneficiaries for the October 1, 2020 start date should no longer expect those employees.  Employers with approved H-2B petitions for seasonal workers will not have the benefit of that supplemental workforce.  Parents relying on J-1 au pairs will need to find alternative childcare.  

Moreover, the June 22 proclamation hints at additional possible forthcoming measures designed to further reduce the number of work-authorized foreign nationals in the U.S.  These include reviewing admitted EB-2 and EB-3 immigrant and H-1B non-immigrant visa holders, and/or those seeking to be admitted in these classifications, to ensure that they are not limiting opportunities for U.S. workers; changing the H-1B program (for example, prioritizing the highest-paid workers in allocating the numerically-capped visas); and preventing individuals who are inadmissible or deportable, or who have been arrested, charged, or convicted of a criminal offense from working in the U.S.

It is crucial that employers currently employing, or considering employing, foreign nationals stay abreast of developments in immigration law in order to properly manage company obligations to the U.S. government and employee relations.    

Kristin A. Zech is an employment lawyer with Berenzweig Leonard, and leads the firm’s Immigration Practice.  She can be reached at 703-940-3788 or [email protected]