WHAT IS THE IMMIGRATION BAN?
President Trump issued a proclamation continuing his April 22, 2020 proclamation that prohibited the entry of immigrant visa holders and suspending and limiting the entry of any individual seeking entry pursuant to the following nonimmigrant visas:
- H-1B or H-2B visa, and any individual accompanying or following to join such individual.
- J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and
- L visa, and any individual accompanying or following to join such individual.
The proclamation shall apply only to any individual who:
- is outside the United States on the effective date of this proclamation.
- does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
- 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 on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
The suspension and limitation on entry pursuant to section 2 of this proclamation shall not apply to:
- any lawful permanent resident of the United States.
- any individual who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen.
- any individual seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- any 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.
The continuation of Proclamation 10014 is effective immediately. The suspension of the entry of certain nonimmigrants took effect on June 24, 2020, at 12:01 am (ET) and is planned to expire on December 31, 2020 (but may be continued).
HOW DOES THIS AFFECT YOU?
If you are currently residing in the U.S. on a nonimmigrant status, this ban does not affect you.
- You can change status in the U.S.
- You can extend your status in the U.S.
- You can process your permanent residency application.
If you are currently outside the U.S. and you are already in possession of a valid visa, this ban does not affect you.
- CHALLA TIP: If you traveled outside the U.S. to visa process for a new nonimmigrant category, but are in possession of another valid nonimmigrant visa, you can return to the U.S. on your existing visa and change status to another classification in the U.S.
If you are processing a visa other than H-1B, H-2B, L-1 or J-1, this ban does not affect you.
- CHALLA TIP: If you are exploring investment opportunities in the U.S., the B-1 visa, which is not one of the banned nonimmigrant classifications, is a mechanism for exploring expansion into the U.S. market. You can then change status to an L-1, if eligible, in the U.S. if once arriving in the U.S. and investigating expansion options, you discover that you need to obtain a work eligible status immediately.
- Caution: The B-1 classification requires that at the time of entry, you intend to return to your home country. Therefore, it is impermissible to enter on the B-1 with the predetermined notion or intent to change status in the U.S. Therefore, we do not recommend utilization of the B-1 for entry with the preconceived intent to change status, but only highlighted that if after entry, the circumstances presented themselves where departing and reentering would pose a business risk, at that point there is the ability to file for a change of status application, but only after 60 days of entry.
There is also an exemption for individuals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. That may be an opportunity to those who are able to make that argument if it is aligned with the standard for national interest waiver, an employment based permanent residency program. However, since it is a discretionary determination, we will need to wait and see how it is applied.