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ENTRY BAN UPDATE: Clarifications to the June 22 proclamation bring even worse news, except for Canadians Us Immigration

In the ten days since we reported Proclamation of President 10052, certain issues that we and other immigration lawyers had about the proclamation have been resolved. The proclamation introduced a H, L, and J entry ban for non-immigrant visas to the United States for the rest of the 2020 calendar year. We now have the following additional answers to the questions we asked on June 23:

If I’m Canadian and don’t need a US visa, can’t I enter?

No, are Canadian citizens not subject to the ban. The pretext for the proclamation is to prevent foreign nationals entitled to work from entering the country who “pose a risk to the US labor market” during the economic recovery of COVID-19. Although Canadians are just as likely to work in the H, L, or J status as other nationalities in the United States, U.S. Customs and Border Protection has confirmed that they are not subject to the proclamation. This is because the proclamation makes a valid visa a prerequisite for entry and, unlike other nationalities, Canadians are exempt from the obligation to have a visa in their passports prior to entry.

If I had a valid visa in another category on June 24, 2020, can I get an H, L, or J visa at a U.S. consular office and return?

No. When the proclamation was first published, it was unclear whether anyone who had a valid visa on June 24, 2020 would be in any Category (e.g. F-1, B-1 / B-2, O-1, etc.) could later apply for an H, L, or J visa and enter the United States. The White House published one on June 29 changed proclamation Clarification that the source language should be read strictly, not generally or generously. Only those who have H, L or J visas In their passports, which were valid on June 24, 2020, they can return to the USA after international travel.

Can I renew and return my visa at a U.S. consulate if I was in H, L, or J status in the U.S. on June 24, 2020 and travel abroad?

Yes and no. For entry, the proclamation requires that your visa be valid on June 24, 2020 remain valid. It is unclear whether consulates will issue new H, L, or J visas, but the proclamation does not specifically prevent them from doing so. You can get a new visa if a consulate gives you an appointment. however, You cannot re-enter with this visa unless you make one of the exceptions (see below).

If I am outside the United States but my H, L, or J visa has expired, can I renew my visa at a US consulate and return?

Yes and no. For entry, the proclamation requires that your visa be valid on June 24, 2020 remain valid. It is unclear whether consulates will issue new H, L, or J visas, but the proclamation does not specifically prevent them from doing so. You can get a new visa if a consulate gives you an appointment. however, You cannot re-enter with this visa unless you make one of the exceptions (see below).

How are the exceptions to the proclamation determined and implemented?

Those who qualify for an exception to the entry ban are still the darkest part of the proclamation. As we originally reported, Proclamation 10052 provides for exemptions from the ban for those who:

  • Critical to US defense, law enforcement, diplomacy, or national security;
  • Involved in the medical care of people admitted to hospital with COVID-19;
  • Involved in the delivery of medical research to US institutions to combat COVID-19; or
  • Necessary to enable an immediate and continuous economic recovery.

The proclamation also grants the Department of State and Homeland Security “sole discretion” to apply these criteria at its own discretion. The hope and expectation was that, after senior government officials set and distributed policies, some discretion would apply to US embassy and consulate officials worldwide and to CBP agents in the U.S.A. In practice, however, these sales representatives don’t seem to have any discretion, and every single exception requires approval at the highest agency level, ensuring an extended review of weeks or months and little to no process transparency.

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