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**Updated August 12, 2020 to include updated information on the travel ban as it relates to H-1B and L-1 employees.**
On June 22, 2020, President Trump issued an Executive Order regarding immigration into the U.S. by temporary workers. This Executive Order is an extension of the order issued on April 22, 2020, which expired at 11:59pm June 22, 2020.
The new Executive Order went into effect June 24, 2020 at 12:01 am EST and will be in effect through December 31, 2020, and may be extended as necessary. See Managing Partner, Murali Bashyam’s Facebook Live where he discussed the executive order.
We have also collated for employers, employees, and other non-immigrants a guide with a list of the frequently asked questions we are receiving in regards to this executive action, and who it does and does not affect.
Who Is Affected By The Executive Order?
Those who are affected by the Executive Order include anyone outside the U.S. who has not yet obtained a valid L-1, H-1B, H-2B or J visa* on and after June 24, 2020. The suspension and limitation on entry to the U.S. also applies to accompanying dependent family members of L-1, H-1B, H-2B or J visa holders (H-4, L-2, and J-2).
*The entry ban does not affect all J-1 nonimmigrants. Only foreign nationals in J-1 status who are participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and their dependents, are subject to the entry ban. Foreign nationals in J-1 status who are completing degree programs and working pursuant to Academic Training are not affected by the travel ban.
Updated August 12, 2020: The Department of State updated its guidance regarding who is exempt from Presidential Proclamation 10052. Based on the update, H-1B and L-1 visas can now be issued for employees who are “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.” Meaning that, if your I-129 petition was filed to request “b. Continuation of previously approved employment without change with the same employer” (in other words, an H-1B or L-1 extension), then the Department of State will be able to issue an H or L visa to you as consulates are able to slowly reopen.
Who Is Not Affected By The Executive Order?
Those who are not affected by the Executive Order include: anyone who has obtained a valid L-1, H-1B, H-2B or J visa and is presently in the U.S. or who has obtained a valid L-1, H-1B, H-2B or J visa and has already activated their status but is presently outside the U.S.
Anyone applying to extend their visa status from within the U.S.
Anyone who has B-1, B-2, F-1 OPT, E, O, or TN visa status.
Anyone who is applying for U.S. Lawful Permanent Resident status (a Green Card) and is presently in the U.S., Lawful Permanent Residents of the U.S. (Green Card holders).
Non-U.S. citizen spouses and children of U.S. citizens.
Visa-exempt Canadian citizens**
Anyone seeking to provide temporary labor or services essential to the U.S. food supply chain.
Anyone whose entry is determined to be in the U.S. national interest.
** U.S. Customs and Border Protection (CBP) Headquarters has confirmed that visa-exempt Canadians are not subject to the suspension of admission to the United States. Canadians entering the U.S. in most nonimmigrant categories are visa exempt, and only need to present the requisite documents or approvals at the Port of Entry when seeking admission to the U.S. In most instances, they are not required to obtain a nonimmigrant visa at a U.S. Embassy or Consulate prior to entering the United States. Because Canadians do not need visas, they generally do not have visas valid on the effective date of the Presidential Proclamation. CBP Headquarters has confirmed that these Canadians are not affected and may continue to enter the U.S. in these classifications.
Who Should Not Travel Outside of the U.S.?
If you are someone who would require an L-1, H-1B, H-2B or J visa stamp to be put into their passport in order to return to the U.S. after June 24, 2020, you should not travel until further guidance is provided.
Does the Executive Order Affect Employees Who Currently Have TN, O-1, E-3, and H-1B1 Status?
The executive order does not affect work authorization or international travel for foreign nationals holding TN, E-3, and O-1 status. That being said, U.S. consulates abroad remain closed due to the COVID-19 outbreak, which makes it challenging to apply for visa stamps. While we do not believe that the entry ban applies to foreign nationals from Singapore and Chile who hold or will apply for H-1B1 Free Trade visas, we encourage those beneficiaries to exercise caution as this visa classification may be confused by the visa officer or CBP official with the H-1B which can result in potential entry issues.
Are There Exemptions to the Executive Order?
Yes, exemptions may be available for foreign nationals who will provide temporary labor or services essential to the U.S. food supply chain as well as for foreign nationals whose entry would be in the national interest of the U.S. Factors that will be considered to be in the national interest include individuals who are:
I currently hold H-1B or L-1 status and I am not subject to the Executive Order. However, I am unclear about my dependents. How do I know whether the Executive Order affects them?
Spouses and children who already hold H-4 and L-2 visa stamps are not affected by the travel ban. They may continue to travel internationally during the travel ban period. Spouses and children who are outside the U.S. as of June 24, 2020 and do not have valid H-4 and L-2 visa stamps will be subject to the travel ban and will be unable to enter the U.S. in that status through the end of the year.
Can I, as an employer, continue to file H-1B and L-1 petitions with USCIS seeking to change, amend, and extend status for my employees?
Yes, you can. The travel ban does not affect an employer’s ability to file petitions with USCIS including change of employer, change of status, amendment, and extension petitions. For foreign nationals in H-1B status, employers can file an H-1B petition to extend the employee’s H-1B status with USCIS. Likewise, for foreign nationals in L-1 status, employers can file an L-1 petition to extend the employee’s L-1 status with USCIS.
Does the Executive Order affect pending or approved H-1B cases filed under the H-1B cap?
The Executive Order will not affect USCIS’ adjudication of H-1B cap cases. It appears, however, that the ban is written to prevent, at least until January 1, 2021, the entry of H-1B specialty occupation workers who were selected in this year’s H-1B lottery and require a visa stamp to activate their status.
I am currently on F-1 student visa and working pursuant to Optional Practical Training (OPT). Can I continue to work on OPT/STEM OPT and travel internationally using my F-1 visa? What if I have a pending or approved H-1B under this year’s H-1B cap?
The Executive Order does not directly affect an F-1 student’s ability to complete their academic program, work in the U.S. pursuant to OPT or STEM OPT, or travel internationally with an unexpired F-1 visa stamp and supporting documentation.
If your employer filed an H-1B cap petition as a “change of status application” for you, which will automatically change your status from F-1 to H-1B on or after October 1, 2020, you should not travel internationally once your H-1B is activated until the entry ban is lifted AND U.S. Embassies and Consulates resume H-1B visa issuance.
If your H-1B cap petition was filed with a consular processing request which does not automatically change your underlying status and requires you to go abroad and obtain an H-1B visa stamp to re-enter the U.S. and activate your H-1B status, then your F-1 visa will be unaffected.
My spouse and children are outside the U.S. and do not hold H-4, L-2, or J-2 visas. Can they enter the U.S. as visitors using a B-2 visa stamp or visa waiver (ESTA)?
While closures of U.S. consulates and embassies around the world and COVID travel restrictions make travel to the U.S. challenging in general, dependents already holding valid B-2 visa stamps, as well as those from visa waiver countries with approved ESTA registrations, should be able to enter the U.S. during the travel ban period for brief visits, consistent with B-2 visa requirements or ESTA program restrictions.
Can I apply for a visa stamp inside the U.S.?
No, you cannot apply for a visa stamp while inside of the U.S.
My visa stamp is expired but I hold a green card-based advance parole document. Can I continue to travel internationally?
Advance parole is an acceptable entry document during the travel ban period. Travelers should take note of their (and their family’s) advance parole expiration dates, file timely extensions, and pay close attention to worldwide travel restrictions associated with COVID-19.
Does the Executive Order affect the processing of my H-4/L-2 EAD?
The Executive Order does not affect USCIS’ adjudication of H-4 and L-2 EADs.
Does the Executive Order affect my permanent resident application (green card) process?
The Executive Order does not affect a foreign national’s ability to apply for permanent residency (green card) through the filing of an I-485 Adjustment of Status Application. However, the proclamation extends a previous order that banned certain immigrant visas (i.e., green cards) from being issued by the U.S. Department of State during the course of a consular processing application abroad.
The Executive Order mentions a potential regulatory change for the H-1B visa category, as well as for employment-based green card applications. What does this mean?
The executive order instructs the Secretary of Labor and the Secretary of the Department of Homeland Security to “consider” promulgating regulations or take other actions to ensure that foreign nationals holding H-1B status as well as those seeking permanent residence in the second and third employment-based categories do not “disadvantage” the U.S.
Regulatory changes are subject to more deliberation and often involve formal notice and comment periods. When the notice and comment period is by-passed, that often leads to litigation. At this time, there are no further developments related to this. We will continue to update should there be any further impacts on visas and sponsorships in the U.S.