On June 22, 2020, the president issued Proclamation 10052 titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, that went into effect at at 12:01 a.m. eastern daylight time on June 24, 2020. A June 29, 2020 amendment clarifies that the exception at Section 3(a)(ii) of Proclamation 10052 applies only to individuals with a valid H, J, or L visa and are planning to seek admission to the United States in one of those categories. Please read:
Proclamation 10054 of June 29, 2020 amended Proclamation 10052 at Section 3(a)(ii) to clarify that the exception in that paragraph applies only to individuals with a valid H, J, or L visa who seek admission to the United States in one of those categories. For example, an individual outside the United States wishing to enter the United States in H-1B status who had valid B-2 visa but not a valid H-1B visa would be subject to the proclamation and would not be eligible for an H-1B visa. Proclamation 10054 also extended the April 22, 2020 Proclamation 10014 suspending entry of certain immigrants until the end of the year.
On October 1, 2020, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking the enforcement of Proclamation 10052, but that injunction is limited to visa applicants whose petitioner (for H-1B or L-1 beneficiaries) or sponsor or host organization (for J-1 applicants) are either one of the plaintiffs (the National Association of Manufactures (NAM), the Chamber of Commerce of the United States of America, the National Retail Federation, Technet, and Intrax, Inc) or are members of the plaintiff associations at the time of adjudication. The case is National Association of Manufacturers, et al. v. U.S. Department of Homeland Security, et al..
- NAFSA's page on Proclamation 10052 of June 22, 2020.
- Proclamation 10052 of June 22, 2020. Also published in the Federal Register at 85 FR 38263 (June 25, 2020).
- Proclamation 10054 of June 29, 2020, amending Proclamation 10052 at Section 3(a)(ii). Also published in the Federal Register at 85 FR 40085 (July 2, 2020).
- National Interest Exceptions to Presidential Proclamations 10014 & 10052. Department of State (August 12, 2020).
- Court Order regarding Presidential Proclamation 10052, DOS web update (October 1, 2020)
- DOS Cable 20 State 113560 (November 20, 2020)
Section 1 of the proclamation extends the effective dates of Proclamation 10014 of April 22, 2020 titled Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This proclamation suspended entry of certain new immigrants who do not already have an approved immigrant visa. It was originally valid for 60 days, until June 22, 2020. The new proclamation extends the period for an additional 6 months, until December 31, 2020.
Section 2 of the proclamation suspends "entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas" until December 31, 2020, subject to section 3 of the proclamation:
- "an H-1B or H-2B visa, and any alien accompanying or following to join such alien;"
- "a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien;"
- "an L visa, and any alien accompanying or following to join such alien"
NAFSA note: This is an exclusive list of covered visa types. The proclamation does not apply to individuals seeking entry on a visa type not listed in the proclamation. For example, it does not apply to entry on an F-1 student visa, or a B-2 visitor visa, or to entry on a J-1 visa to participate in exchange categories other than those listed. For example, it does not apply to participants seeking entry in the J-1 professor, research scholar, short-term scholar, college or university student, or ECFMG alien physician categories. Also see a July 2, 2020 email from the Exchange Visitor Program confirming that regarding J nonimmigrants, Proclamation 10052 only applies to certain participants in the Au Pair, Camp Counselor, Intern, Teacher, Trainee, and Summer Work Travel categories, and their dependents.
NAFSA note: The proclamation suspends "entry into the United States" of someone who is "seeking entry pursuant to" one of the listed visa types. Under a plain reading of this language:
- The proclamation should not apply to immigration benefits available to individuals inside the United States, such as change of status to H-1B;
- Since Canadian citizens are generally exempt from the visa requirement, they should likely be exempt from this proclamation under a plain reading because they are not "seeking entry pursuant" to an H, J, or L visa. The American Immigration Lawyers Association (AILA) issued a practice alert (AILA Doc. No. 20062436 Dated June 24, 2020) saying that its CBP-OFO Liaison Committee confirmed this plain-reading interpretation with CBP HQ.
NAFSA note: In a July 7, 2020 Communication to Sponsors, the Department of State's Exchange Visitor Program explained the scope of Proclamation 10052 on certain participants in the J-1 intern, trainee, teacher, camp counselor, au pair, or summer work travel program categories.
Exceptions. Section 3(a) of Proclamation 10052 (as amended at Section 3(a)(ii)) establishes that this entry bar applies only to an individual who:
"(i) is outside the United States on the effective date of this proclamation;
[as amended by Proclamation 10054] (ii) does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and
(iii) 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."
NAFSA note: Reading Section 3 inversely, the proclamation should not apply to someone who is in the United States on June 24, 2020 (the effective date of the proclamation), or to someone who has an H, L, or J nonimmigrant visa valid on June 24, 2020 (whether they are inside or outside the United States on that date) which they will use to seek entry, or to someone who has an official travel document such as advance parole that is valid on or issued after June 24, 2020. The June 29, 2020 amendment clarifies that the exception at Section 3(a)(ii) of Proclamation 10052 applies only to individuals with a valid H, J, or L visa who seek admission to the United States in one of those categories. For example, an individual outside the United States wishing to enter the United States in H-1B status who had valid B-2 visa but not a valid H-1B visa would be subject to the proclamation and would not be eligible for an H-1B visa.
Also excluded from the proclamation's entry bar under Section 3(b) are:
"(i) any lawful permanent resident of the United States;
(ii) any alien 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;
(iii) any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(iv) any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees."
For more information on national interest waivers under Proclamation 10052, see National Interest Exceptions to Presidential Proclamations 10014 & 10052. Department of State (August 12, 2020). This DOS posting provides the following guidance on national interest waivers of Proclamation 10052 for H-1B visa applicants. Note that the proclamation does not limit national interest waivers to these bases, so DOS and DHS retain full discretion to determine what constitutes "national interest" in individual cases. Particularly helpful, though, is the language telling consular officers that they can consider "travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification" as in the national interest for purposes of reentry to the United States.
"Exceptions under P.P. 10052 for certain travel in the national interest by nonimmigrants may include the following:
For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification. Forcing employers to replace employees in this situation may cause financial hardship. Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in "previously approved employment without change with the same employer." (emphasis added)
Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States. Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:
The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States. Labor Condition Applications (LCAs) approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner's business; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker. For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer. Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
The applicant's proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need. Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:
a.) Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
b.) The applicant's proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent. When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
The H-1B applicant's education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed. For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer. The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer's inability to meet financial or contractual obligations; the employer's inability to continue its business; or a delay or other impediment to the employer's ability to return to its pre-COVID-19 level of operations."
NAFSA note: Individual circumstances can vary, as can the interpretations of consular officials and immigration inspectors. This NAFSA page should not be construed as legal advice. Individuals who need advice on whether the proclamation applies to them or their families in order to make decisions on traveling to or from the United States should be encouraged to seek the advice of an experienced immigration lawyer.
Additional Measures Called for by the Proclamation
Section 4 directs that, "Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”
Section 5 of the June 22, 2020 proclamation calls on the agencies to take substantial "additional measures," such as:
- Directing DOL and DHS to ensure compliance with the permanent labor certification (PERM) and temporary labor condition application (LCA) statutory rules that are designed to protect U.S. workers
- Directing DHS and DOS to ensure compliance with biographic and biometric data collection requirements
- Directing DHS to " take appropriate and necessary steps, consistent with applicable law, to prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States."
- Directing DHS to "consider promulgating regulations or take other appropriate action regarding the efficient allocation of visas pursuant to section 214(g)(3) of the INA (8 U.S.C. 1184(g)(3)) and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers."
Interaction with Other COVID-19 Measures
The President has issued several COVID-19-related proclamations, and there are also other COVID-19 travel restrictions. Currently all are in effect. They are also independent one from another. For example, if someone is exempt from the June 22, 2020 proclamation on H, J, and L nonimmigrants, they may still be subject to one of the country-specific COVID-19 proclamations (i.e., if present in China, Iran, European Schengen Area, U.K, Ireland, or Brazil in the 14-day period before attempting entry to the U.S.) unless specifically exempt from those as well.