President Trump Temporarily Suspends U.S. Entry for Certain H-1B, J-1 and L-1 Workers

In an executive order dated Monday, June 22, 2020, President Trump has temporarily barred certain work visa holders from entering the U.S. The restriction becomes effective at 12:01 a.m. EDT on June 24, 2020, will expire on December 31, 2020 (unless renewed), and will ban certain H, J and L work visa holders from entering the U.S.

Update (August 13, 2020): Please see an updated article with exceptions to the travel ban rules.

Details of the Ban – Limited to Certain Nonimmigrant Work Visas

The proclamation bans the entry into the U.S. of any worker who has:

• H-1B or H-2B visa (including dependents, such as H-4 spouses and children);
• J visa (intern, trainee, teacher, camp counselor, au pair, or summer work travel, including J-2 dependents); or
• L visa (including L-2 dependents).

Who is Covered?

These restrictions entry apply only to a prospective worker who:

• is outside of the US on the effective date of the proclamation (June 24, 2020);
• does not have a nonimmigrant visa that is valid on the effective date (June 24, 2020); and
• does not have an official travel document other than a visa (such as boarding foil, advance parole or similar) that is valid on the effective date or issued at any time in the future.

Exceptions

The restrictions do not apply to:

• lawful permanent residents of the US (green card holders);
• children or spouses of U.S. citizens;
• anyone seeking to enter the US to provide temporary labor or services essential to the U.S. food supply chain; or
• anyone whose entry would be in the national interest.

Validity

The ban will be valid from June 24, 2020 until December 31, 2020 and may be extended.

What Did Not Make It Into the Executive Order Ban?

There are many work visa categories which did not make it into the executive order and are not subject to the entry ban. For example, the entry ban does not cover F-1, O-1, TN, E and other nonimmigrant work visas. Not all J-1 categories are included as well – J-1 researcher scholars, J-1 doctors, J-1 students, J-1 international visitors are not covered by the ban. Visitor visas are not covered as well.

OPT or H-4 EAD changes or restrictions, which were discussed as possibly being included in the ban, are not impacted. But the administration may still seek to change/rescind via regulation.

Major Categories of H/J/L Nonimmigrant Workers Who Are Not Subject to the Ban

Inside the U.S. If you are in the U.S. as of June 24, 2020 then you should not be subject to the ban under Section 3(a)(i).

Valid Visa. If, on June 24, 2020, you have a valid visa, even if you are outside of the U.S. on June 24, 2020, you should not be subject to the ban under Section 3(a)(ii).

Food Chain Supply/National Interest. If you are going to be providing labor or services essential to the food chain supply OR such labor or services will be in the national interest then an exception to the ban can be made on case-by-case basis.

Extension of the Immigrant Visa Entry Ban

The executive order also extends the validity of the April 22, 2020 immigrant visa ban (which was set to expire on June 24, 2020) until December 31, 2020.

Common Questions and Scenarios

Extensions/Change of Status Not Impacted. The executive order does not impact pending petitions for extension, amendment or change of status for nonimmigrant workers who are in the U.S.

Nonimmigrant Workers in U.S. Not Impacted. Nonimmigrant workers (H, J, L) in the U.S. on valid status (even if change of status is pending, for example, such as F-1 to H-1B cap change of status situation) are not impacted (but we caution carefully considering and getting good advice before traveling outside of the U.S.).

H-1B/L-1 Workers Abroad with Expired Visa and Waiting for Visa Renewal. The ban appears to trap a notable number of nonimmigrant workers who find themselves outside of the U.S. and waiting for a visa renewal (or petition approval before they can apply for stamping). This is especially acerbated by the COVID-19 consular office closures which resulted in a significant number of long-time H-1B workers to be stuck abroad and waiting for visa renewal; under the terms of this ban, unless a good case for exception can be made, such workers are likely going to be negatively impacted.

New H-1B Cap Workers Outside of the U.S. The executive order does not affect the outcome of a pending H-1B cap petition. But if the approval is for a worker who is outside of the U.S., they will either need to claim an exemption (see below) or wait until the executive order and the ban expire on December 31, 2020 (unless extended; the current administration’s term ends on January 20, 2021). As a result, if a U.S. employer is willing to wait for a few additional months after the October 1, 2020 H-1B cap date, pursuing an H-1B cap petition for a worker outside of the U.S. is certainly very doable and without so much delay.

Canadian Workers. Canadian citizens generally do not require a visa to enter the U.S. As such, a Canadian citizen does not need to obtain a visa stamp to enter the U.S. on H, J or L status and this raises the question as to whether a Canadian citizen H, J or L worker is subject to the ban. The executive order is unclear and may be interpreted both ways: (1) that Canadians entering the U.S. do not have a visa, and as such, are subject to the ban, or (2) that Canadians, because they are not required to have a visa, are excluded under the ban altogether. We hope a clarification (by CBP, most likely) will be forthcoming.

Present in U.S. on June 24, 2020. Nonimmigrant workers who are in the U.S. as of 12:01 am EDT on June 24, 2020 are not subject to the ban regardless of their U.S. status type. This includes H-1B cap applicants who are seeking change of status in the U.S., all H-1B workers who are during their H-1B petition validity term or are seeking to extend, amend or transfer their H-1B petition. This means that they should be able to leave the U.S. after June 24, 2020, obtain visa stamp and then travel back to the U.S. Caution: we do not recommend doing so without careful guidance by attorney due to related issues including closed consular offices and worldwide travel bans.

Valid Nonimmigrant Visa as of June 24, 2020. Nonimmigrant workers (in the U.S. or abroad) who have a valid, non-cancelled and non-expired visa in their passport, are not subject to the ban. Notably, this includes nonimmigrants who are not only in the U.S. but also who are outside of the U.S. even as of June 24, 2020. The visa may be from a prior employer – for example, a non-expired H-1B work visa issued while employed at a former H-1B employer can be used to enter the U.S. to work at a subsequent H-1B employer.

Principal Worker Exempt/Dependents Exempt Too? It is unclear from the language of the executive order whether dependents (H-4, J-2, L-2) are subject to the ban if the dependent does not qualify for an exemption but the primary worker (H-1/J/L-1) is exempt. For example, if the H-1B worker is in the U.S. (and not subject to the ban) but the H-4 spouse is abroad on June 24, 2020 (and does not otherwise qualify for an exemption), then it is extremely unclear if the dependent will be able to obtain a visa and enter the U.S. under this ban. We will be looking for more guidance (and actual practices) in this scenario.

Claiming Exception “Necessary to facilitate the immediate and continued economic recovery of the U.S.” This appears to be very broad exception which may allow for making arguments that the presence of a specific nonimmigrant worker in the U.S. is directly tied to a specific aspect of the economic recovery. For example, an L-1A manager who is critically needed to be in the U.S. in order to navigate the economic recovery of a company (or a unit of a company) can argue that the economic well being of that company or unit (and the possibility of avoiding layoffs of U.S workers, for example) is directly related to the continued economic recovery of the U.S. This argument should work for most L-1As and many H-1B. This argument will have to be presented to consular officers so there is possibility of varying results among consulates and visa officers. Extremely important to be able to present and document this exception to the consular officer very well.

Claiming Exception “Essential to the United States food supply chain”. When possible to connect an H-1B/J/L-1 position to food, agriculture or related aspect of theU.S. food chain in may be possible to claim this exception and obtain a visa stamp (and enter the U.S.). Discretion by the consular officer; possibly varying results among consulates and visa officers. Extremely important to be able to present and document this exception to the consular officer very well.

Strategies for Resolving Ban Situations

The executive order creates a number of exceptions and exclusions which may allow for a number of alternatives. For example, it may be possible to enter the U.S. using a non-banned visa type (or claim an exemption) and then seek to change status from within the U.S. We urge employers and employees to carefully consider each specific case as there may be a number of exemptions applicable or there may be an alternative strategy to bring a worker into the U.S. Our office will be happy to provide advice and help craft such strategies.

Visa Issuance and Certain USCIS Services Suspended Anyway

To provide additional context, we should point out that nonimmigrant and immigrant visa issuance at U.S. consulates abroad has been suspended as a result of the Coronavirus/COVID-19 pandemic. Similarly, certain USCIS services have been put on hold as well, including biometrics and green card interviews at USCIS field offices.

Conclusion

Overall, while the executive order seems to impact a lot of people, it is much narrower in scope than it was initially expected. It will nonetheless impact a number of nonimmigrant workers coming to the U.S. and our office is ready to assist applicants who may be affected by this temporary ban.

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