Last week, a federal judge in California ordered the government to stop enforcing section 2 of  Presidential Proclamation 10052, which suspended the admission of temporary workers in the H, J and L visa categories from abroad until December 31, 2020.  The judge found the Proclamation was an overreach of executive power, which is reserved for national security and foreign policy issues, not domestic unemployment.  This is a temporary order called a Preliminary Injunction while the merits of the case can be litigated.   

Who Benefits from this Order?

The order is limited to the parties that brought the lawsuit challenging the Presidential Proclamation.  The parties to the lawsuit are:

1. Chamber of Commerce of the United States;

2. Intrax, Inc.

3. National Association of Manufacturers;

4. National Retail Federation; and

5. Technet. 

Companies and organizations that are members of these associations can benefit from the order. A member company or organization with an employee abroad waiting to pick up his or her H, J or L visa can move forward with applying for a visa.  For now, it may be possible to benefit from this order by joining one of these associations because the order is silent as to whether membership at any particular time is required to benefit from the order. 

Getting a Visa Under this Order

The US State Department has confirmed that it would follow the judge’s order and would accept H, J and L visa applications.  The State Department has not yet provided any instructions on how to show a visa applicant is  covered by the order.   Showing eligibility under a National Interest Exemption per the State Department’s August 21 guidance is not required.  

That said, because most Consulates are operating on a limited basis due to the global pandemic, it could take several months to be scheduled for a visa appointment.  Visa applicants would need to show an emergency basis for expediting their appointment if they need to enter the US sooner. 

Other Travel Restrictions to Keep in Mind

Finally, the restrictions on travel from 31 countries (Brazil, China, Iran, Ireland, Schengen Area, and the UK) remain in effect even if a visa is obtained.  We have no visibility at this time on when these restrictions will end.  Currently, we have three ways to deal with these travel restrictions:  

1) Foreign nationals traveling from these countries have been quarantining in a non-restricted country for 14 days before seeking admission to the United States; 

2) Waivers for travel from Ireland, the Schengen Area and the UK are available by applying at the US Consulates in these countries in limited circumstances.  Each Consulate has specific instructions on how to obtain these waivers.  We have seen limited success at the US Consulates in the Schengen Area. 

3) Customs and Border Protection at six airports in the United States (Boston, Chicago, JFK, LAX, Newark, and SFO) have been processing travel waiver requests based on undue hardship.  Each airport has different processes, but we have had success obtaining waivers with CBP at SFO. 

These developments have been moving fast.  We continue to keep an eye on these changes and will update you with more information as it becomes available.  

This alert is for informational purposes only.  If you would like to discuss this development further, please do not hesitate to contact us.