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COVID-19-Related Suspension of Nonimmigrant Entry

Changes from June 24, 2020 to June 29, 2020

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INSIGHTi COVID-19-Related Suspension of Nonimmigrant Entry Updated June 29June 24, 2020 On June 22, President Trump issued a proclamation (amended on June 29) suspending the entry of foreign nationals (aliens) in certain nonimmigrant (temporary) visa categories that allow foreign nationals to work in the United States. Citing the high unemployment rate resulting from public health measures to reduce the spread of COVID-19, the proclamation suspends the entry of foreign nationals—and their accompanying family members—on H-1B, H-2B, J, and L visas, with some exceptions. This proclamation follows Proclamation 10014 from April 22 (which it extends through December 31, 2020) suspending the entry of permanent immigrants (see CRS Insight IN11362). In Proclamation 10014, President Trump directed the Secretaries of Labor and Homeland Security to review nonimmigrant programs and recommend measures to prioritize the hiring of U.S. workers. According to the June 22 proclamation, the Secretaries found that admitting temporary workers in the aforementioned categories “poses a risk of displacing and disadvantaging United States workers during the current recovery.” The President cited two immigration-related legal authorities. Under Section 212(f) (8 U.S.C. §1182(f)) of the Immigration and Nationality Act (INA), the President may suspend immigration when it would be detrimental to the interests of the United States. Under INA §215(a) (8 U.S.C. §1185(a)) the President may prescribe limitations and exceptions on who may enter or depart the United States. How long will the suspension last? The proclamation suspending the entry of foreign nationals in certain nonimmigrant visa categories remains in effect from June 24, 2020, through December 31, 2020, with the possibility of continuation thereafter. Beginning 30 days after the effective date, and every 60 days thereafter, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State, may recommend changes to it. Who is included in the suspension? Section 2 suspends the entry of nonimmigrants in these visa categories:  H-1B (specialty occupation workers); Congressional Research Service https://crsreports.congress.gov IN11435 CRS INSIGHT Prepared for Members and Committees of Congress Congressional Research Service  H-2B (seasonal nonagricultural workers) unless performing work essential to the food supply chain;  J-1 (exchange visitors) in the following program categories: intern, trainee, teacher, camp counselor, au pair, and summer work travel; L-1 (intracompany transferees);   accompanying spouses or children of the above (most of whom are not authorized to work in the United States). Who is not included in the suspension? Section 3 exempts the following individuals:   aliens in the United States on June 24, 2020; aliens with valid nonimmigrant visas or other official travel documents in the visa categories listed above as of June 24, 2020;   lawful permanent residents (LPRs or “green card” holders); spouses and children of U.S. citizens;  aliens seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; aliens whose entry would be in the national interest as determined by the Secretaries of State and Homeland Security.  What other measures are included in the proclamation? Section 5 directs Secretaries of the following three departments to take certain actions beyond the suspension of nonimmigrant entry. Specifically, it directs    HHS to provide guidance to DHS and DOS on measures to “reduce the risk that aliens seeking admission or entry to the United States may introduce, transmit, or spread SARSCoV-2 within the United States.” DOL to (1) take action to ensure that U.S. workers are not disadvantaged by H-1B temporary workers or workers admitted permanently through the 2nd and 3rd employmentbased LPR categories; and (2) investigate employers of H-1B workers who may not be in compliance with statute. DHS to (1) ensure that biographic and biometric information is collected from all aliens applying for immigration benefits or admission to the United States; (2) prevent aliens from obtaining work authorization who are removable or who have been arrested for, charged with, or convicted of a criminal offense in the United States; and (3) “ensure the efficient allocation of [H-1B] visas” including by re-allocating visas from those obtained fraudulently to legitimate applicants and “ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers.” Implementation The proclamation gives DOS consular officers discretion to determine whether aliens qualify for exceptions to this suspension. The proclamation also directs the Secretaries of State, Labor, and Homeland Security to produce standards for determining which aliens fall under the national interest exemption, including those “critical to the defense, law enforcement, diplomacy, or national security of 2 Congressional Research Service 3 the United States,” those involved with COVID-19-related medical care and research, those “necessary to facilitate the immediate and continued economic recovery of the United States,” and alien children who would age out of eligibility for a visa as a result of this proclamation or Proclamation 10014. What are some implications of this proclamation? The immediate impact is unclear, given that DOS had already suspended overseas visa processing as of March 20, 2020. DOS visa issuance data from 2019 may provide some indication of how many prospective nonimmigrants could be affected were visa issuances in 2020 to remain at 2019 levels. From July 2019 to December 2019 (roughly the same months as this proclamation’s effective dates), DOS issued approximately 116,000 H-1B visas, 26,000 H-2B visas, 41,000 L-1 visas, and 133,000 J-1 visas (in all program categories). In addition, DOS issued approximately 135,000 visas for accompanying family members in these categories. Taking into account the fraction of J visa exchange visitors represented by the suspended program categories and the proportion of family members of H-1B, H-2B, and J visitors who would be covered, this proclamation could result in around 360,000 aliens being unable to obtain nonimmigrant visas. Because this proclamation does not apply to aliens already in the United States or those who have valid nonimmigrant visas, it does not include those applying for a change of status from within the United States. For example, foreign students on F-1 visas pursuing work authorization through the Optional Practical Training (OPT) program, or F-1 students or J-1 physicians wishing to change to H-1B status are not included. In addition, aliens overseas applying for F-1 student visas or J-1 exchange visitor visas in the following categories are not included: physician, government visitor, international visitor, professor, research scholar, short-term scholar, specialist, and student. Temporary agricultural workers on H-2A visas are also not included. Author Information Jill H. Wilson Analyst in Immigration Policy Disclaimer This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material. IN11435 · VERSION 1 · NEW2 · UPDATED