Overview of Exemption and Exceptions to Trump Administration's Travel Bans

In the Spring and Summer of 2020, President Trump issued a series Executive Proclamations restricting the entry of certain individuals to the United States. This first set of proclamations, issued between February and March of 2020 banned the entry of anyone who had been in a country with a high rate of COVID-19 cases within the 14 days preceding their entry to the U.S. These countries include, China, Iran, the Schengen Region of Europe, The United Kingdom, The Republic of Ireland, and Brazil. These Proclamations are generally referred to as the “Public Health Travel Ban”.

Further, on April 22, 2020, President Trump issued a Proclamation preventing certain immigrant visa applicants from obtaining immigrant visas to enter the United States and which called for the review of nonimmigrant programs with a view toward enacting additional restrictions. Subsequently, on June 22, 2020, the President expanded the scope of this Proclamation to certain nonimmigrant visa categories, effectively banning the entry of individuals on H-1B, H-2B, J-1, and L-1 visas, as well as their dependent family members, from entering the U.S. until December 31, 2020. The purported premise for these travel bans was to protect the U.S. labor market during a period of severe economic contraction following the COVID-19 outbreak. The travel ban is generally referred to as the “Labor Market Travel Ban.”

The text of both travel bans listed numerous individuals who were exempted from the temporary travel restrictions, as outlined below:

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President Trump Issues Executive Order Regarding Federal Contractor Hiring Practices

Today President Trump issued an Executive Order (EO) titled “Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers”, which directs all federal agencies within the next 120 days to review their hiring practices in order to determine whether H-1B workers provided services through a contract or subcontract and assess whether there was a negative impact on the U.S. labor market as a result.

More specifically, the EO directs federal agencies to determine:

  1. Whether any of the workers performing services under a contract with a contractor or subcontractor were H-1B workers,

  2. To outline the nature of the work performed, how it impacted U.S .workers, how it impacted national security,

  3. To assess whether any of the work previously performed in the U.S. has been outsourced to another country, and

  4. To review their policies in order to ensure they comply with laws governing positions where U.S. workers must be hired.

The order also gives the Department of Labor 45 days to ensure compliance with regulatory attestations it must make regarding the employment of H-1B workers (which require employer to attest that foreign workers will receive the same wages, working conditions, and benefits as similarly situated U.S. workers).

NY District Court Issues Nationwide Preliminary Injunction on Enforcement of Public Charge Rule During COVID-19 Outbreak

This week, the U.S. District Court for the Southern District of New York (SDNY) issued a preliminary injunction blocking the enforcement of the Trump Administration’s 2019 regulation titled “Inadmissibility on Public Charge Grounds”. The Public Charge Rule was initially introduced in August of 2019 and has been viewed by many as an extensive and overly burdensome “wealth test” that goes far beyond the existing requirement that green card applicants and those seeking admission to the U.S. from overseas demonstrate that they are not likely to become a public charge (e.g., rely on certain means-tested public benefits).

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USCIS Reports Significant EAD and Green Card Printing Delays & Permits Use of Approval Notices for I-9 Purposes in Certain Instances

In June the United States Citizenship and Immigration Service (USCIS) ended its contract with an external vendor responsible for printing Employment Authorization Documents (EADs) and Lawful Permanent Resident Cards (“Green Cards”) in an effort to hire federal employees to replace these outside contractors. However, given USCIS’s massive budget deficit, which may result in 70% of its workforce being furloughed if it does not receive a Congressional bailout, they are currently subject to a hiring freeze, which has significantly reduced it’s capacity to print these documents.

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Department of State August 2020 Visa Bulletin Summary

The Department of State has released the August 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, July 20, 2020, USCIS has not yet advised whether, in August 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates, as it did in July.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China will advance just under six months to February 8, 2018 and EB-1 India will advance nine months, also to February 8, 2018. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance two months and one week to January 15, 2016, and EB-2 India will remain unchanged at July 8, 2009. All EB-3 categories except India and China will advance just under a year to April 1, 2019. EB-3 China will advance just under eight months to February 15, 2017, and EB-3 India will advance four months to October 1, 2009. All EB-5 countries of chargeability except China and Vietnam will remain current. EB-5 China will advance two weeks to August 8, 2015, while EB-5 Vietnam will advance over two months to July 22, 2017.

With respect to Employment Based Application Filing Dates, EB-1 Filing Dates for all countries of chargeability, except China and India, will remain current. EB-1 China and EB-1 India will advance eight months and eleven months respectively to July 1, 2018. Dates of filing for the EB-2 category will remain unchanged from July. With the exception of India and China, Application Filing Dates for all EB-3 countries of chargeability will advance one year to April 1, 2020. EB-3 China will advance two months to May 1, 2017 and EB-3 India will remain unchanged at February 1, 2010. Dates of filing for the EB-5 category will remain unchanged from July.


DOS Announces Exemption to Travel Ban for Certain European Students Studying in the U.S.

Several news outlets are reporting that the Department of State has sent a memo to lawmakers in Congress stating that students who are currently in Europe and have a valid F-1 visa stamp are exempt from the March 2020 Executive Proclamations temporarily suspending travel from the Schengen region of Europe, the U.K. and the Republic of Ireland. It appears that the exception does not apply to students in Brazil, Iran, and China, which are also subject to similar travel bans.

D&S is continuing to monitor the situation and will provide updates and additional guidance as it becomes available.

DOS Announces Exceptions to Presidential Proclamations Suspending the Entry of Certain Immigrants and Nonimmigrants

Today the Department of State (DOS) announced an exception to the Presidential Proclamations suspending entry of Immigrants and Nonimmigrants to the U.S. where the President deemed their entry a risk to the U.S. labor market during the economic recovery following the COVID-19 pandemic. In addition to the exceptions listed in the text of the Proclamations, the DOS outlined three (3) additional limited exceptions provided to:

  1. Applicants who are subject to aging out of their current immigrant visa classification for the expiration of the relevant Proclamations or within two (2) weeks thereafter;

  2. Certain H and J visa applicants who are traveling to work in support of critical U.S. foreign policy objectives (such as COVID-19 response) and/or traveling at the request of the U.S. government;

  3. Spouses and children of certain visa class holders, such as H, J, and L visa holders who are already exempted from or not subject to the nonimmigrant ban because, for example, the principal applicant is already in the United States.

The announcement further clarifies that Diversity Visa applicants who were not issues an immigrant visa as of April 23, 2020 remain subject to the proclamation. Finally, the announcement confirms that no valid visas will be revoked as a result of the proclamation.

Immigration Impact of Executive Order on Hong Kong Normalization

President Trump has issued an Executive Order on Hong Kong Normalization, which has several immigration consequences for foreign nationals born in Hong Kong. The most significant impact is on green card wait times. Since the enactment of the United States-Hong Kong Policy Act of 1992, the United States government has treated Hong Kong as a separate country from China for immigration purposes. This was especially beneficial in the green card context since wait times for individuals born in mainland China to receive a green card can often be 4-10 years, if not longer. Because Hong Kong was not considered part of mainland China, it got to benefit from much shorter, if any, wait times applicable to individuals generally classified under “All Chargeability Areas Except Those Listed”.

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State Department Announces Phased Resumption of Routine Consular Visa Services

The U.S. Department of State (DOS) has updated its website to indicate that U.S. embassies and consulates will begin resuming routine consular services in a phased approach that will occur on a post-by-post basis. The update states that “As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.”

The DOS notes, however, that it is not able to provide specifics dates for when each consular post will resume specific visa services or when they will again be able to resume processing at full, pre-COVID levels, as these will largely be dictated by local conditions. All posts will continue to provide emergency and mission critical services consistent with what has been provided since the suspension of routine visa services in March 2020.

For further information on the specific services being offered by a consular post, individuals should check that post’s website. Finally, the announcement confirms that the resumption of routine visa services is still limited by the COVID-19 Proclamations, including those restricting travel from certain countries and those put in place under the guise of protecting the U.S. labor market.

D&S will continue to monitor this developing situation and provide updates as they become available.

ICE's Student Exchange Visitor Program Issues Broadcast Modifying Online Class Accommodations Made In Response to COVID-19 - Updated on 7/14/2020 to Confirm New Policy Has Been Rescinded

Today, Immigration and Customs Enforcement’s (ICE) Student Exchange Visitor Program (SEVP) sent out a Broadcast Message notifying all SEVIS users of modifications being made to the temporary procedural adaptations for online courses that were permitted during the height of the COVID-19 Pandemic. Specifically, for the spring and summer 2020 semesters SEVP had temporarily exempted F-1 and M-1 students from the normal online class requirements and were permitted to take more online courses than normally allowed for purposes of maintaining a full course of study.

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White House Issues Presidential Proclamation Expanding Immigration Restrictions to Certain Nonimmigrant Visa Categories

Today the Trump administration released an expansion of its April 22, 2020 Presidential Proclamation on Immigration which was previously focused only on temporarily suspending the entrance of individuals entering the U.S. on certain immigrant visas. The expanded proclamation extends the temporary suspension of that limited class of immigrant visa holders from the U.S. This extension takes effect immediately. In addition, the Proclamation expands the suspension to nonimmigrant visas including some of the most commonly used employment-based nonimmigrant visas such as the H-1B, L-1, and certain J-1 visas, as well as any dependent family members of these visa holders. The entry of individuals on H-2B visas for non-agricultural seasonal workers is also suspended.

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Department of State July 2020 Visa Bulletin Summary

The Department of State has released the July 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that, in July 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China will advance one week to August 22, 2017 and EB-1 India will advance eleven months to May 8, 2017. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance one week to November 8, 2015, and EB-2 India will advance just under a month to July 8, 2009. All EB-3 categories except India and China will advance five months and one week to April 15, 2018. EB-3 China will advance one week to June 22, 2016, and EB-3 India will advance two months to June 1, 2009. EB-5 India will become current, and all other EB-5 countries of chargeability, except China and Vietnam, will remain current. EB-5 China will advance one week to July 22, 2015, while EB-5 Vietnam will advance three weeks to May 15, 2017.

With respect to Employment Based Application Filing Dates, EB-3 and EB-5 categories remain unchanged from June. EB-1 Filing Dates for all countries of chargeability, except China and India, will remain current. EB-1 China will advance once month to November 1, 2017, and EB-1 India will advance four and a half months to August 1, 2017. With the exception of India and China, Application Filing Dates for all EB-2 countries of chargeability remain current. EB-2 China will remain unchanged at August 1, 2016, and EB-2 India will advance one and a half months to August 15, 2009.


USCIS Announces Premium Processing Will Resume in a Phased Approach in June

Today, the United States Citizenship and Immigration Service (USCIS) announced that, starting next week, it will resume premium processing service for certain nonimmigrant and immigrant petitions. The schedule for resumption of premium processing service, which is subject to change, is as follows:

June 1, 2020 - Premium processing to resume for all pending and newly filed I-140 petitions

June 8, 2020 - Premium processing to resume for:

  • Pending cap-exempt H-1B petitions filed before June 8, 2020 (including cap-exempt petitioners and petitions for beneficiaries already counted against the H-1B cap including pending extensions and change of employer requests).

  • All other pending I-129 petitions for nonimmigrant classification that are eligible for premium processing (e.g., L-1, O-1, E-2, TN).

June 15, 2020 - Premium processing to resume for:

  • Newly filed H-1B cap-exempt petitions, which can be filed with a concurrent request for premium processing where cap-exemption is based on either:

    • The Petitioner being a cap-exempt institution; OR

    • The beneficiary being cap-exempt based on a Conrad/IGA waiver under section 214(l) of the Immigration and Nationality Act (INA).

June 22, 2020 - Premium processing to resume for all other Form I-129 petitions, including:

  • All FY2021 cap-subject petitions (including upgrades for pending cases and concurrent premium processing request for newly submitted petitions)

  • All other newly filed I-129 petitions for nonimmigrant classification that are eligible for premium processing (e.g., L-1, O-1, E-2, TN and remaining H-1B petitions).

As noted above, USCIS has stated that all dates are subject to change.

D&S will continue to monitor the situation and provide updates as they become available.

Department of State June 2020 Visa Bulletin Summary

The Department of State has released the June 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. As of today, May 21, 2020, USCIS has not yet advised whether, in June 2020, it will once again accept adjustment of status applications for employment-based petitions based on the bulletin’s Final Action Dates, as it has in May.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will remain current. EB-1 China will advance one month to August 15, 2017 and EB-1 India will advance over ten months to June 8, 2016. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance one month to November 1, 2015, and EB-2 India will advance ten days to June 12, 2009. All EB-3 categories except India and China will advance just over ten months to November 8, 2017. EB-3 China will advance one month to June 15, 2016, and EB-3 India will advance one month to April 1, 2009.

EB-5 Non-Regional Center and EB-5 Regional Center Final Action Dates remain current with the exception of China, India, and Vietnam. EB-5 China will advance two weeks to July 15, 2015, while EB-5 India will advance three months to January 1, 2020, and EB-5 Vietnam will advance three weeks to April 22, 2017. Application Filing Dates for EB-1, EB-2, EB-3, and EB-5 categories remain unchanged from May.


Department of State May 2020 Visa Bulletin Summary

The Department of State has released the May 2020 Visa Bulletin. D&S provides a Monthly Summary of the employment-based priority dates. USCIS has advised that in May 2020, it will once again accept adjustment of status applications for employment-based petitions based on the May Bulletin’s final action dates, as it did in April. For family based petitions, adjustment of status applications will be accepted based on dates of filing, except for the F2A category, which will be based on final action dates.

With respect to Employment Based (EB) Final Action Dates, all EB-1 countries of chargeability, except India and China, will become current. EB-1 China will advance five weeks to July 15, 2017 and EB-1 India will advance three months to August 1, 2015. With the exception of India and China, all other EB-2 countries of chargeability remain current. EB-2 China will advance one month to October 1, 2015, and EB-2 India will advance one week to June 2, 2009. All EB-3 categories except India and China will remain unchanged at January 1, 2017. EB-3 China will advance one month to May 15, 2016, and EB-3 India will advance over a month to March 1, 2009.

EB-5 Non-Regional Center and EB-5 Regional Center Final Action Dates remain current with the exception of China, India, and Vietnam. EB-5 China will advance one and a half months to July 1, 2015, while EB-5 India will advance nine months to October 1, 2019, and EB-5 Vietnam will advance over a month and a half to April 1, 2017.

With respect to Employment Based (EB) Application Filing Dates, dates for EB-1, EB-2 and EB-5 categories remain unchanged from April. Filing dates for all EB-3 countries of chargeability, except India and China, will advance three months to April 1, 2019. EB-3 China and India will remain unchanged at March 1, 2017 and February 1, 2010, respectively.


USCIS Targets June 4, 2020 As Earliest Date for Reopening of In-Person Services

Today, USCIS announced that they are preparing to reopen in-person services on or after June 4, 2020. In doing so USCIS has pushed back its previous targeted reopening date of May 7th. These in-person services include application support center (ASC) biometrics, naturalization ceremonies, InfoPass appointments, and adjustment of status and naturalization interviews.

USCIS has noted that once normal operations have resumed it will automatically reschedule ASC appointments. Those with InfoPass an other field office appointments such as adjustment of status and naturalization interviews, must reschedule using the USCIS Contact Center once field offices are open to the public again.

President Trump Signs Executive Order Temporarily Suspending Most Consular Immigrant Visa Processing

Tonight, President Trump signed and Executive Proclamation titled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The Proclamation, which take effect at 11:59 pm ET on April 23, 2020, and will initially last 60 days, temporarily suspends the issuance of most Immigrant Visas, which allow individuals to enter the United States as Lawful Permanent Residents.

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Executive Order Temporarily Halting U.S. Immigration

Late last night President Trump tweeted that he would be issuing an Executive Order (EO) temporarily banning all new immigration to the U.S. Despite some speculation as to the content of the EO, we won't definitively know the nature, scope, and timing of the ban until the EO is released. D&S is monitoring this very closely and will provide an update once any new information is made available by the government.

Update: In his daily briefing this evening, Trump has said that the EO will suspend immigration for 60 days and will apply only to those seeking Permanent Residence, not to those on nonimmigrant visas. We continue to await the actual EO, which the President has indicated should be drafted and signed tomorrow (April 22) and will provide updated information at that time.

USCIS Announces Delays in Receiving and Receipting FY2021 H-1B Cap Petitions

Today USCIS announced that due to operational interruptions it is experiencing as a result of the health and safety protocols it is following in response to the COVID-19 pandemic, data entry and receipting for all FY2021 H-1B cap subject petitions will be delays until at least May 1, 2020. USCIS has indicated that once data entry begins, the agency will complete intake processing on a first-in, first-out basis. It confirmed that petitions will be stamped as received on the date they arrive at the service center and, if otherwise properly filed, will retain the receipt date that corresponds with the date the petition is received at the service center.

USCIS further confirmed that this announcement does not change the 90-day filing window provided on the initial registration notices. USCIS requested that petitioners refrain from inquiring on cases until they have received a filing receipt and further noted that some petitions may be transferred to other service centers to balance workloads but that petitioners should still submit their petitions at the service center indicated on their registration notice.

D&S will continue to monitor this situation and provide updates as they become available.