Presidential Proclamation Quickly Suspends New H-1B, H2B, J-1, and L-1 Visa and Journey from Overseas
On June 22, 2020, President Trump issued a proclamation (“Proclamation”) suspending and limiting the entry of people into the USA within the following employment-based nonimmigrant visa classes:
H-1B or H-2B visas, and their H-Four household derivatives;
J-1 visas, and their J-2 household derivatives; and
L-1 visas, and their L-2 household derivatives.
The Proclamation takes impact on June 24, 2020, and is about to run out on December 31, 2020, however could also be prolonged. As well as, upon advice of the Secretary of Homeland Safety, the Proclamation could also be modified throughout the subsequent 30 days after June 24, 2020, and each 60 days thereafter, “as could also be essential.”
The Proclamation applies solely to these with relevant visa statuses who:
are exterior the USA on or after June 24, 2020, and
don’t possess both (i) a sound unexpired H, J, or L nonimmigrant visa on June 24, 2020, or (ii) an official journey doc apart from a visa that’s legitimate on or after June 24, 2020 (e.g., a transportation letter, boarding foil, or advance parole).
The Proclamation is an extension of Proclamation 10014, issued in April 2020, limiting immigrant visa functions (i.e., inexperienced card functions) at U.S. embassies overseas. Of significance, nevertheless, the Proclamation is restricted to the above-listed visa statuses.
International nationals who’re already bodily current in the USA in H-1B, H-2B, J-1, or L-1 visa standing, or their household spinoff beneficiaries holding respective H-4, J-2, and L-2 visa statuses, are usually not affected by the Proclamation. Nevertheless, if these international nationals have expired visas and wish to go away the USA this yr, then they may seemingly not be capable of return to the USA till 2021, i.e., after the Proclamation expires.
The Proclamation additionally doesn’t have an effect on any previous, present, or future U.S. Citizenship and Immigration Providers (“USCIS”) case processing and adjudications. Subsequently, all H-1B change of standing, change of employer, and cap circumstances already filed or to be filed is not going to be impacted. The identical goes for L-1 extensions filed or to be filed.
As well as, and opposite to some considerations which were raised, the Proclamation doesn’t impression F-1 and H-Four employment authorization offered underneath an EAD (work authorization card).
The Proclamation additionally doesn’t apply to the next:
spouses and kids of U.S. residents;
lawful everlasting residents (“LPRs”) of the USA, and their partner or youngsters;
people searching for to enter the USA to supply important labor or providers to the U.S. meals provide chain; or
people whose entry could be within the nationwide curiosity, as decided by the Secretary of State, the Secretary of Homeland Safety, or their respective designees.
The Proclamation directs the Secretaries of State, Labor, and Homeland Safety to ascertain requirements to outline the classes of people lined by the “nationwide curiosity” exemption, together with those that are:
essential to the protection, regulation enforcement, diplomacy, or nationwide safety of the USA;
concerned with the availability of medical care to people who’ve contracted COVID-19 and are at present hospitalized;
concerned with the availability of medical analysis at U.S. amenities to assist the USA fight COVID-19;
essential to facilitate the fast and continued financial restoration of the USA; or
youngsters who would age out of eligibility for a visa due to the Proclamation or due to Proclamation 10014.
International nationals also needs to be reminded that the presidential proclamation issued earlier this yr suspending entry of vacationers who had been bodily current in international locations that pose a threat of spreading COVID-19 remains to be in impact as of the date of this alert. Thus, even when a person has a sound visa in his or her passport, the international nationwide could not journey to the USA at the moment if throughout the fast 14 days previous to requesting entry into the USA, the international nationwide has traveled:
China (excludes Hong Kong and Macau);
the Schengen space (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden, and Switzerland);
Homeland Safety Additional Extends Particular Flexibility for Verifying Types I-9
On March 20, 2020, we printed a Particular Immigration Alert relating to the Division of Homeland Safety (“DHS”) granting employers particular flexibility to confirm Type I-9 paperwork with out requiring the viewing of the particular authentic paperwork, offered the employers adopted particular necessities. On Could 20, 2020, DHS prolonged this particular flexibility for a further 30 days, to June 19, 2020, after which once more prolonged this particular flexibility for an additional further 30 days, as much as July 19, 2020.
Absent additional extension, all employers will likely be required to revert to the pre-COVID-19 requirement to finish I-9 verification of latest hires as of July 20, 2020. We’ll advise if this particular flexibility receives one other extension.
U.S. Supreme Court docket Upholds DACA for Now
On June 18, 2020, the USA Supreme Court docket issued a choice in DHS v. Regents of the College of California blocking the federal government from terminating the Deferred Motion for Childhood Arrivals Program (i.e., “DACA”). The Court docket held that the DHS’s motion to terminate the DACA program was arbitrary and capricious underneath the Administrative Process Act (“APA”). Of significance, the Court docket didn’t rule on the legality of this system, however relatively remanded the matter to the DHS for additional proceedings in accordance with the APA, Thus, though Court docket’s choice was excellent news for DACA recipients and permits them to proceed with their approved keep and authorized work authorization in the intervening time, the potential for termination of this system after additional evaluate and proceedings by DHS stays.
USCIS Points New Coverage Memo to Loosen up Adjudication Necessities for H-1B Petitions Filed by Employers Putting Staff at Third-Occasion Websites
On June 17, 2020, USCIS issued a brand new coverage memo stress-free the H-1B adjudication necessities relating to the way to decide if a real employer-employee relationship exists for H-1B employers that assign H-1B staff to third-party websites. Prior to now, USCIS has adjudicated these circumstances underneath the strict Neufeld Memo, which obligates the employer to satisfy a number of necessities, together with proving the existence of its potential to rent, pay, fireplace, supervise, or in any other case management the work of the worker. On account of a federal court docket settlement, USCIS has since instituted a brand new coverage memo considerably stress-free these necessities.
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