On April 22, 2020, President Trump signed an Executive Order barring certain types of immigrant visa applications abroad. Effective April 23, 2020 and lasting for 60 days, the President suspended the issuance of immigrant visas at consular posts overseas, with certain exceptions. The purpose of the Order was to help American workers regain their jobs that may have been lost due to the economic effects of the COVID-19 pandemic.
On June 22, 2020, as the 60 day suspension period was coming to an end, the President issued an extension of the suspension for immigrant visa processing and has, in addition, suspended entry for certain H-1B, H-2B, L-1, and J-1 travelers into the United States through to (and including) December 31, 2020, effective immediately. If someone is outside the United States as of June 22, 2020 but is in possession of an unexpired H 1B, H-2B, L-1 or J-1 visa valid as of June 22, 2020, the proclamation does not apply to them and they will be allowed entry into the United States if otherwise admissible.
Q: Does this apply to all H-1B, H-2B, L-1 and J-1 employees?
No, the Proclamation applies to:
1. H-1B, H-2B, L-1, or J-1 travelers who are outside the United States on June 24th, 2020; and 2. Who are not in possession of an unexpired H-1B, H-2B, L-1, or J-1 visa in their passports or a valid US travel document such as an advance parole document.
Q: Who is not impacted by this Proclamation?
As written, it appears that the Proclamation does not apply to H-1B, H-2B, L-1 and J-1 employees who are in the United States on June 22, 2020 nor to employees holding H-1B, H-2B, L-1 and J-1 visas valid today who are outside the United States.
Q: What does this mean if someone is in possession of a valid H-1B, H-2B, L-1 or J-1 visa and is currently outside the United States?
This temporary suspension of entry for the aforementioned visas would mean that anyone who is not in possession of an unexpired H-1B, H-2B, L-1 or J-1 visa and is currently outside the United States, will not be allowed entry into the United States through to and including December 31, 2020, unless the President decides to either extend or shorten that period.
Q: Does this apply to the spouses and dependent children of H-1B, H-2B, L-1 or J 1 employees?
Yes, the suspension applies to the dependents of H-1B, H-2B, L-1 or J-1 travelers. If the dependent is in possession of an unexpired H-4, L-2 or J-2 visa as of June 22, 2020, they will be admitted into the United States but if they require a visa, they will not be issued the visa nor will they be able to seek entry to the United States while it remains in effect.
Q: What does this mean if someone holds H-1B, H-2B, L-1 or J-1 status and is currently inside the United States?
If they are currently inside the United States and hold H-1B, H-2B, L-1 or J-1 status, they are authorized to remain in the United States and may continue to work for their employer-sponsors; however, it is unclear from the Proclamation as to whether they will be able to apply for a visa in the event of international travel during the suspension period and whether they will be admitted into the United States We will need to wait on further guidance on this area.
Q: Are there any exceptions to the travel ban?
The Proclamation does provide for some exceptions to the order which include those that “are critical to the defense, law enforcement, diplomacy, or national security of the United States; are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.” They have also stated that “any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain” will be exempt from this order.
Q: What does this mean if someone holds F-1 or another nonimmigrant status and is currently inside the United States, but has a H-1B cap Change of Status case pending or approved?
If they are currently inside the United States and hold F-1 or some other nonimmigrant status and are the beneficiary of a pending or approved H-1B cap Change of Status application, they may continue to remain and/or work inside the United States, and their status will automatically change to H-1B on or after October 1, 2020, assuming the H-1B cap petition is approved by then. If they need to make an international trip after September 30, 2020 and their H-1B application has been approved, it is unclear from the Proclamation as to whether they will be able to apply for a visa in the event of international travel during the suspension period and whether they will be admitted into the United States. We will need to wait on further guidance on this area.
Q: What does this mean if someone now in the United States has an H-1B cap petition filed that does not request a change of status?
If the Beneficiary of that H-1B petition is in the United States, the Proclamation would not affect their underlying nonimmigrant status. Upon approval of the H-1B petition, should they leave the United States and obtain a visa, it is unclear whether they would be exempt from the Proclamation based upon their presence in the United States on June 22, 2020.
Q: How does this effect employees extending their status in the US through a filing with USCIS?
Please note that this Proclamation impacts visas and not status. A visa is a travel document that is required to enter the United States and is obtained through an interview with the US Embassy or Consulate overseas. The Proclamation is aimed at suspending entry for those who have not received visas as of June 22, 2020. The Proclamation will not impact those that are already in the United States or have unexpired visas.
It also does not affect the processing of any filings with the US Department of Labor or the USCIS.
Q: How does this effect employees that are Canadian citizens, and visa exempt?
While Canadian citizens are visa exempt, they are still likely subject to the Executive Order and will need to plan their travel schedule accordingly. However, because Canadian citizens are entitled to admission pursuant to the TN NAFTA visa category, there may be some situations where a Canadian citizen can seek TN admission on an interim basis. We will need to wait on further guidance on this area.
We will likely see additional guidance and clarification in the near future which we will share with you. In the meantime, if you have questions on how this may apply to you or your employees, please contact our firm.