By: Brittany Simmons

On December 31, 2020 President Trump extended the entry ban for prospective H-1B, H-2B, L-1, and certain J-1 visa holders through March 31, 2021. The ban impacts foreign nationals who were outside of the United States on the proclamation’s effective date of June 24, 2020 and did not already hold a valid US visa or travel document. The order also automatically extends the entry ban on certain immigrant categories.

There are still exceptions to the ban available based on State Department criteria. President-elect Joe Biden will likely review this order after he takes office on January 20, 2021.

which nonimmigrants foreign nationals are impacted by the ban?

Effective since June 2020, the presidential proclamation on H, L, and J visas impacts nonimmigrants including:

• H-1B and H-2B nonimmigrant workers
• L-1A executives and managers
• L-1B specialized knowledge workers
• J-1 interns, trainees, teachers, camp counselors, au pairs, and Summer Work Travel participants
• The dependent spouses and children of the above categories

Foreign nationals are subject to the ban if they apply for a visa in an above category, and they also meet the below criteria:

• They were outside of the United States on the proclamation’s effective date of June 24, 2020.
• They did not already hold a valid US visa in one of the above categories.
• They did not already have a different valid US visa or travel document which enables them to enter the country.

Entry ban exemptions

Foreign nationals are not subject to the ban if they:

• Were present in the United States on the proclamation’s effective date of June 24, 2020.
• Held a valid visa in one of the restricted categories.
• Held a valid US visa or travel document.
• Are visa-exempt Canadian nationals.
• Are US lawful permanent residents (green card holders).
• Are spouses and children of US citizens.
• Are J-1 exchange program participants other than interns, trainees, teachers, camp counselors, au pairs, and Summer Work Travel participants.
• Will be working in certain positions that are essential to the US food supply chain (applicable mainly to H-2B workers).
• Will benefit the national interest of the US by entering, at the sole discretion of the US government. These individuals may include those whose entry aids in the economic recovery of the United States, those involved in the treatment or research of COVID-19, and those who are critical to US law enforcement or national security efforts.

Additionally, a limited injunction may help certain organizations to sponsor foreign workers impacted by the ban, including:

• The member organizations of the National Association of Manufacturers.
• The US Chamber of Commerce and member organizations.
• The National Retail Federation and member organizations.
• Technet.
• Intrax, Inc.
• Organizations that sponsor cultural exchange programs.

Even if they are exempt from the ban, foreign nationals may still face difficulty entering the United States due to ongoing travel restrictions related to COVID-19 and limited US consular operations abroad.

Extension of the immigrant entry ban

This order also extends the ban on entry for certain immigrants through March 31, 2021. During this time, US consulates abroad will not issue new immigrant visas for employment-based, family-based, or diversity visa cases. There are limited exceptions to this ban, including:

• US lawful permanent residents (green card holders).
• Spouses of US citizens.
• Children under 21 of US citizens.
• Prospective adoptees under IR-4 or IH-4 visas.
• Healthcare professionals and their spouses and children under 21.
• Applicants for EB-5 investor visas.
• Those whose entry is in the US national interest.

next steps for the entry bans

The bans are currently in effect until March 31, 2021. While President-elect Joe Biden has not yet issued a statement on whether he will rescind the entry bans after he becomes president on January 20, 2021,  we expect that he will at least review these bans. President-elect Biden can rescind the bans by issuing a subsequent presidential proclamation.

Our immigration team is closely monitoring the situation and will issue updates as soon as they are available. For more information on how this ban impacts you or your employee, please contact your trusted Chugh, LLP attorney.