Business Immigration Insights

In the ten days since we reported on presidential Proclamation 10052, certain questions we and other immigration attorneys had about the proclamation have been clarified.  The proclamation established a ban on admission to the United States for people in the H, L, and J nonimmigrant visa categories for the rest of calendar year 2020.  We now have the following additional answers to the questions we asked on June 23:

If I am Canadian and do not require a U.S. visa, am I banned from entering?

No.  Canadian citizens are not subject to the ban.  The pretext for the proclamation is preventing entry of work-authorized foreign nationals who “present a risk to the U.S. labor market” during COVID-19 economic recovery.  Although Canadians are just as likely as other nationalities to work in the United States in H, L or J status, US Customs and Border Protection has confirmed they are not subject to the proclamation.  This is because the proclamation makes a valid visa a prerequisite for entry, and Canadians, unlike other nationalities, are exempt from the requirement to have visas in their passports prior to entering.

If I had a valid visa on June 24, 2020, in a different category, can I obtain an H, L or J visa at a US consular post, and return?

No.  When the proclamation was initially released, it was unclear whether someone who had a valid visa on June 24, 2020, in any category (e.g., F-1, B-1/B-2, O-1, etc.) could later apply for an H, L or J visa and enter the United States.  On June 29, the White House released an amended proclamation clarifying that its initial language was meant to be read strictly, not broadly or generously.  Only those who have H, L or J visas in their passports that were valid on June 24, 2020, may reenter the US after international travel.

If I was inside the United States in H, L or J status on June 24, 2020, and I travel abroad, can I renew my visa at a US consular post, and return?

Yes and No.  For entry, the proclamation requires that your visa be valid on June 24, 2020, and remain valid.  It is unclear if consulates will issue new H, L or J visas, but the proclamation does not explicitly prevent them from doing so.  You can obtain a new visa if a consulate grants you an appointment; however, you cannot reenter with that visa unless you meet one of the exceptions (see below).

If I am outside the United States, but my H, L or J visa has expired, can I renew my visa at a US consular post, and return?

Yes and No.  For entry, the proclamation requires that your visa be valid on June 24, 2020, and remain valid.  It is unclear if consulates will issue new H, L or J visas, but the proclamation does not explicitly prevent them from doing so.  You can obtain a new visa if a consulate grants you an appointment; however, you cannot reenter with that visa unless you meet one of the exceptions (see below).

How will the exceptions to the proclamation be determined and implemented?

Who qualifies for an exception to the entry ban is still the most obscure part of the proclamation.  As we reported initially, Proclamation 10052 establishes exceptions to the ban for those who are:

• Critical to U.S. defense, law enforcement, diplomacy, or national security;
• Involved in providing medical care to people who are hospitalized with COVID-19;
• Involved in providing medical research at U.S. facilities to help combat COVID-19; or
• Necessary to facilitate immediate and continued economic recovery.

The proclamation also grants “sole discretion” to the Departments of State and Homeland Security to apply these criteria as they see fit.  The hope and expectation have been that, eventually, after guidelines were established and distributed to the field by high-level cabinet officials, a certain level of discretion would extend to officers at U.S. embassies and consulates worldwide, as well as to CBP agents at US land and air ports of entry.  However, in practice, it appears these field officers will have no discretion whatsoever and each individual exception will require approval at the highest agency levels, thus assuring an extended review of weeks or months and little to no transparency in the process.