Yesterday, in response to the ongoing COVID-19 pandemic, President Trump signed an executive order (“proclamation”) suspending the entry of H-1B, H-2B, certain J-1 visas (intern, trainee, teacher, camp counselor, au pair, or summer work travel program), and L-1 visa, or any individuals accompanying or following to join such visas, until December 31, 2020. The ban on entry becomes effective on June 24, 2020 at 12:01 a.m. EDT.
The suspension of entry applies to individuals who:
The entry bar does not apply to lawful permanent residents, the spouse or child of a US citizen, any foreign national seeking to enter the U.S. to provide temporary labor services essential to the U.S. food supply chain, and any alien whose entry would be in the U.S. National Interest according to the Secretary of State, the Secretary of Homeland Security, or their respective designees.
The suspension of entry does not impact individuals already in the U.S., specifically individuals seeking to change or extend their nonimmigrant status. Instead, the order would only prevent individuals who are currently outside of the U.S. and who do not have an existing visa from entering the country. In addition, effective immediately, the proclamation extends the ban on the admission of immigrant visas under Proclamation 10014 (previously issued and in force since April 23, 2020) until December 31, 2020.
Over the next several days, our firm will be reaching out to affected companies and their foreign employees to explore options to minimize the impact of the proclamation. While these new restrictions are significant, the proclamation does not substantially change the current status quo for foreign nationals who are currently abroad without a visa. Since March, global routine visa services of all U.S. Embassies and Consulates have been suspended by the Department of State, preventing the issuance of nonimmigrant (and immigrant) visas. Reporting we have received suggests lack of any concrete plans on when and how many of these offices will officially reopen, so getting a visa at this time is extremely difficult. As a result, those individuals who were already out of the country waiting on a visa to return were likely already waiting well into the fall. This proclamation will create further delays to the return.
Every major technology company commented on this proclamation confirming the possible harm it will do to our economic recovery from COVID-19. To better understand the potential outcomes as a result of this proclamation, we provide a FAQ below. Managing Partner David Brown will also be holding a webinar on this and other recent impacts to the immigration system caused by this Administration on Friday June 26, 2020 at 12pm CST (1pm EST/10am PST), and he will repeat his remarks on Tuesday June 30, 2020, also at 12pm CST for those who cannot attend Friday.
As always, our firm will continue to provide timely updates on how this evolves and other key issues impacting companies and their foreign workers.
I have an existing H-1B approval and returned to my home country to help my family. My visa is expired. Does this impact me?
Yes. Although you have an approval notice, you lack a current unexpired visa at the time the proclamation goes into effect and for that reason you cannot travel back to the U.S. at this time. The current status of the proclamation prevents you from travelling on a visa before January 1, 2021 and it is silent as to whether a consulate, if reopened this fall, could issue a visa in advance of January travel. Additionally, the proclamation is eligible to be extended and can be modified.
My FY2021 cap case was filed with the consular option, what are my options?
Given that under normal circumstances this would require you to leave and return with a new visa, and consulates are closed and now new H-1 visas are impacted as a result of this proclamation, we will want to consider other options. Assuming you are currently in the U.S., and your cap petition was filed with the consular option, we would seek to file an amendment to change the petition type to a “change of status.” Doing so will allow you to begin working on October 1st, the soonest you are eligible to begin employment on H-1B status, assuming the change of status petition is timely adjudicated by USCIS without the need for leaving the U.S. to get a visa.
If you are outside of the U.S., depending on if you have a B visa, or are a citizen of a country that does not require a visa to enter the U.S., it may be possible for you to enter the U.S. and change your status to the corresponding nonimmigrant status (Note: one cannot enter under ESTA and file a change of status application). Our team will closely coordinate with individuals who are currently outside of the U.S. to explore and discuss this option.
Can a change of status amendment be filed even if my H-1B cap case was already approved?
Yes. We have successfully done this several times recently given COVID-19’s impact on the ability to travel safely.
Does the proclamation restrict my entry if I currently have an unexpired H-1B, H-2B, certain J visa, or L-1 visa when the proclamation becomes effective?
No. If you currently have an unexpired visa mentioned by the proclamation, you are still able to travel and return to the U.S. using the existing valid visa. Be sure to travel safely – meaning if you travel be certain that you will be able to return before the visa’s expiration.
If I am already in the US in another nonimmigrant status such as the F, will my entry be restricted once I change my status and subsequently obtain a corresponding visa?
No. As long as you are in the U.S. on the effective date of the proclamation (June 24, 2020 at 12:01 a.m. EDT) and you possess a valid nonimmigrant visa, you may travel out of the country and return as normal regardless of the visa status you hold. And if you are not in one of the listed visa statuses covered by the proclamation (H-1B, H-2B, L-1, and certain J-1, also referred to as the “restricted visas”) there is no visa based restriction on your entry (although there may be travel related restrictions depending on what country you visit). What is unclear from the proclamation is if you meet the terms of the general outline at the time of the proclamation while in a different visa status, can you receive a restricted visa from the consulate. While we expect the answer will be no, we will have to wait for further guidance from the Department of State. Given the uncertainty, we will want to ensure that you do not leave the U.S. during this time if you ultimately seek a restricted visa.
I thought there were exceptions to this rule depending on what you are doing?
There are stated exceptions where a restricted visa can be awarded. It will be up to the Secretary of State and his designated consular officials to determine if a visa applicant fits within the noted exceptions which include those who:
If you are currently outside of the U.S. and in need of a restricted visa and believe you meet one of these criteria, then we will work to help you get a visa.
So does this truly just impact those who are seeking a restricted visa and who are out of the U.S.? I thought they were going to cancel STEM EADs, and OPT and H-4 EADs?
The short answer is yes. This is the only immediate impact at this time. However, in the language of the proclamation the Secretary of Homeland Security is to continue to assess the H-1 program and all visa programs and make recommendations for regulatory changes under the guise of protecting U.S. workers’ jobs. It has been rumored that the Administration is seeking to change the H and F programs specifically through regulatory changes. We will have to wait and see any further announcements if and when they are made public, but for now it remains status quo for F-1 related EADs, and H-4 EADs.
Can you advise me if I hold an H-1B approval “or other restricted visa” and I’m from Canada, or if I’m on an H-1B1 from Singapore or Chile?
In a proclamation as general as this, some of the finer points are unclear. We don’t know how the H-1B or any other restricted visa “such as L-1, J-1, and H-2B” from Canada will be treated – on the plain language of it if you are outside of the U.S. and don’t possess a valid visa you may not be entitled to enter the country. However, the I-797 is the recognized travel document, but it is not listed as possible examples in the underlying proclamation. For this reason, until we have government guidance we suggest Canadians on H-1B or any other restricted visa do not leave the U.S. and that those outside the U.S. consider returning. We will update with any guidance received. At the same time the proclamation mentions H-1Bs but does not specifically mention H-1B1s so we are unsure of the impact of the proclamation, however, from a practical perspective since consulates are likely to remain closed for a period of time people on H-1B1 face generally the same predicament because if you leave and need a visa the consulate will not process. As information becomes clearer we will share it with our clients.
As a final note, if you are concerned about not being able to return from travel as a result of future executive action, the best defense is to not leave. The administration has little authority to change rules over people already in the country without proper notice and consent (which is the appropriate rule-making regulatory procedure). We remain available to assist in any way we can, and for more information please join our webinars.
David Brown, Managing Partner, will discuss the key elements to pay attention to related to new presidential proclamation which bars the entry of certain nonimmigrant visas.
David will cover key points related to:
David will walk through specific examples and scenarios and draw on his experience handling these issues the last 22 years. After his presentation he will provide direct answers to questions and he is also available for direct consultation on these matters after the webinar. If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.
As precaution and to ensure all clients are aware of what to expect, we have scheduled additional and last follow up Webinar to ensure everyone has an opportunity to join in should you have a conflict on the 26th.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **