On June 22, 2020, President Trump signed another order restricting immigration and extending the already existing proclamation of April 22, 2020. The proclamation grandiosely announced a “ban on all immigration,” yet upon closer look it didn’t affect all immigration, just people who were outside the U.S., waiting for the issuance of their employment-based green cards. These people now have to wait longer – until December 31, 2020. Green card applicants in the U.S. or on visas were not affected. The new June proclamation added the suspension of certain non-immigrant visas, such as H-1B, H-2, L-1 and most J-1.

The official text of the President’s Proclamation can be found on The White House website.

Who is affected and how?

1. The new order extends the earlier April order which already barred the issuance of immigrant visas (green cards) for people outside the U.S. that time. So no green cards are being issued at U.S. consulates for people who were outside the U.S. until 12/31/2020.
2. The new order also bars the issuance of the following non-immigrant visas for people who were outside the U.S. when it went into effect, such as for H-1B or H-2Bs and their dependents, J-1 interns, trainees, teachers, counselors, au pairs, or summer work travel program people and their dependents, L visa entrants and their dependents.
3. The bar applies only to people who are outside the U.S. on the effective date of the proclamation, 12:01 am on June 24, 2020. It does not apply to individuals outside the U.S. who had a valid visa on June 23, 2020. Please note the difference between USCIS approval and the actual visa. A visa is the sticker in your passport put in by a consular officer after you’ve had an interview at a U.S. consulate.
   Visa holders currently in the United States are allowed to continue their work. Extension of status, change of status or adjustment of status requests are not affected and are still being processed.
4. Exempt are: Green card holders, spouses or children of U.S. citizens, someone providing temporary labor or services essential to the United States food supply chain, and anyone whose entry would be in the national interest as determined by the Secretary of State, DHS, or their respective designees. For purposes of determining any of the exceptions, it will be up to the consular officer to determine in his or her discretion whether a non-immigrant has established eligibility.
   Canadians are also not affected as Canadians are normally exempt from visas. Canadian L or TN visas are still being adjudicated at YVR and other Canada designated ports.
5. For purposes of determining whether a national interest applies, State, Labor, and Homeland Security Secretaries are to establish standards to define categories including those that are critical to defense, law enforcement, diplomacy, or national security; are involved with the provision of medical care to people who have contracted Covid-19 and are currently hospitalized; are involved with providing medical research at US facilities to help the US combat Covid-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.
   This last criterion could possibly open up the door for some L-1 executives.
   Yet it is questionable whether individuals with unrelated approved EB-2 National Interest Waiver (NIW) cases could qualify for an exception, such as an NIW for establishing reading programs for special needs children.

The proclamation intends to dampen enthusiasm further for those applying for H-1B’s non-immigrant visas and EB-2/EB-3 immigrant visas (all of which already require the employer to pay the prevailing wage to the foreign national as it directs the Secretary of Labor in consultation with the Secretary of Homeland Security to consider establishing regulations or take other appropriate actions to ensure that the presence of foreign nationals does not disadvantage U.S. workers. This will likely mean making employers pay not just prevailing wages, but more for the privilege of sponsoring foreign nationals and more checks and investigations into labor certifications.

The proclamation also charges the DHS Sec. with taking appropriate and necessary steps to prevent aliens with final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for or charged with or convicted of a criminal offense in the U.S. from obtaining eligibility to work in the U.S. Among others, such a regulation would affect persons under orders of supervision; possibly those who have conceded deportability at a master calendar hearing; and anyone who has been arrested for or charged for even disorderly conduct.

In short and to re-cap:

April 22, 2020 Visa Ban Extended – Who is subject to the ban?

• Immigrant visas for parents, adult sons and daughters, and siblings of U.S. citizens;
• Immigrant visas for spouses and children of lawful permanent residents;
• Immigrant visas under the diversity visa lottery; and
• Immigrant visas in the employment-based categories.

April 22, 2020 Visa Ban Extended – Who is exempt from the ban?

• Green card holders;
• Spouses and children of U.S. citizens;
• Members of the U.S. Armed Forces and their spouses and children;
• Persons applying for green cards under the EB-5 investor program;
• Persons who would further important U.S. law enforcement objectives;
• Persons whose entry would be in the national interest;
• Persons who qualify for special immigrant visas as Afghan/Iraqi translators/interpreters or U.S. government employees;
• A person seeking an immigrant visa as a physician, nurse or other healthcare professional; to perform research intended to combat the spread of COVID-19; or to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak.

Visa Ban Expanded on June 24, 2020 to Include

• H-1B Visas for Professionals and Others
• H-2B Visas for Temporary Non-Agricultural Workers
• L-1A Visas for Intracompany Managers and Executives
• L-1B Visas for Intracompany Transferees with Specialized Knowledge
• Certain J-1 Exchange Visitors – interns, trainees, teachers, camp counselors, au pairs and summer work travel participants; and
• Spouses and unmarried children of persons in the above categories who are “accompanying or following to join” the principal in the U.S.

Who is Exempt from the Expanded Visa Ban?

• Green card holders;
• Spouses and unmarried, minor children of U.S. citizens;
• Foreign nationals present in the U.S. on June 24, 2020;
• Foreign nationals abroad who have valid visas, advance parole or other U.S. travel permits;
• Persons with J-1 status who are not in one of the banned categories (See above);
• Persons seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain; and
• Persons whose entry would be in the national interest as determined by the Secretary of State, the Secretary of the Department of Homeland Security or their respective designees. This includes persons who are critical to the defense, law enforcement, diplomacy, or national security of the U.S.; 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 U.S. facilities to help combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the U.S.

FAQ

Q: My employee is in the U.S. on an H-1B right now. The employee does not have a valid visa stamp in her passport. Can the employee leave the U.S.?

A: NO – H-1B workers who are in the U.S. and do not have a valid visa stamp should not travel outside the U.S.  Without a valid visa stamp, the worker will not be allowed back into the U.S.

Q: I have a valid visa stamp in my passport. Can I travel overseas?

A: YES – Those who are in the U.S. and have a valid visa stamp can travel abroad, provided they return to the U.S. before the expiration of their visa stamp.

Q: My employee is overseas and had an appointment at the Embassy to get a visa stamp in July 2020. Will my employee be able to return to the U.S.?

A: NO – Visa stamps in the effected categories will not be issued until after January 1, 2021, or perhaps later.

Q: My employee’s spouse and child are outside the U.S. for their regular summer visit to their home country. The spouses and child were able to visit the Embassy in May and obtain new visa stamps. Will my employee’s spouse and child be able to return to the U.S.?

A: YES – The spouse and child can enter the U.S. if they have valid visa stamps in their passports.

Q: My employee is abroad right now and does not have a valid H-1B visa stamp in his passport. However, he does have a valid B1/B2 tourist visa stamp in his passport, can he travel to the U.S. on his B1/B2 stamp?

A: The employee can enter on their B visa but is not allowed to work in tourist status. A change of status from B-1/B-2 to H-1B would have to be filed once the employee enters the U.S. The employee cannot return to work until this change of status is approved by the USCIS.

Q: My employee currently holds a green card. She is outside the U.S. and plans to return in July 2020. Can she return on her green card?

A: YES – the Proclamation exempts U.S. Legal Permanent Residents from the ban.

Q: My company has filed a green card case for our future employee who is a nurse. We are a staffing company and do not yet know at which of our client sites the nurse will be assigned to work. Can the nurse enter the U.S.?

A: MAYBE – Under current interpretation, the nurse may enter the U.S. on a green card for any reason. However, the Trump Administration may narrow the ban and require nurses to be treating patients who are currently hospitalized with Covid-19.

Q: I am currently in the U.S. working for my company on OPT. My employer has filed an H-1B application which was selected in the H-1B lottery and is currently in process with the USCIS. Will the H-1B be impacted by the ban?

A: NO – because this is a change of status from F-1 to H-1B, you will not be impacted. However, you should not  travel outside the U.S., as you will not be able to get an H-1B visa stamp and return.

Q: My employee is in the U.S. on an H-1B and has no plans to travel. Can I sponsor this employee for a green card?

A: YES – the there is no prohibition against filing green card cases from inside the U.S. Employees can still “adjust status.”

Q: My employee holds an H-1B that will expire later this year. Can I file an extension of the employee’s H-1B status?

A: YES – the there is no prohibition against filing for an extension, amendment, or transfer of an H-1B.