Quick Takeaways:
- Changes go into effect 12:01AM EST on June 24, 2020 and unless lifted or enjoined will remain in place through at least December 31, 2020.
- Suspends admission of H-1B, H-2B, L-1, and certain J-1 nonimmigrants and their dependents who are outside the United States and who do not have valid visas or other valid travel document as of the effective date.
- Also extends existing suspension of immigrant visa issuance through December 31, 2020, subject to previously announced exceptions.
- Individuals seeking a change to one of the affected statuses within the United States or who have a valid visa are not covered by the Executive Order are able to continuing processing.
- Does not include Lawful Permanent Residents,spouses/children of U.S. Citizens, essential workers in food supply chain, and other individuals whose admission would be in the “national interest.”
- Other nonimmigrant workers (E-3, TN, H-1B1, O, P, etc.) are not included.
- Many questions remain with respect to interpretation and implementation.
As discussed in Sunday’s blog post, President Trump signed an Executive Order, that, as of 12:01AM on Wednesday, June 24, will impose a “suspension and limitation on entry”for individuals in the following visa classifications:
- H-1B specialty occupation workers and their H-4 spouses and children;
- L-1A executives/manager and L-1B specialized knowledge workers for intracompany transfers and their L-2 spouses and children;
- H-2B temporary, non-agricultural workers and their H-4 spouses and children; and
- J-1 trainees, interns, teachers, camp counselors, au pairs, and summer work travel participants, and their J-2 spouses and children;
So long as the following three conditions are met:
- The individual is outside the United States on June 24, 2020;
- The individual does not have a valid nonimmigrant visa effective June 24, 2020; and
- The individual does not have any other valid travel document, such as an advance parole document or foil in their passport, effective June 24, 2020.
Under the terms of the Executive Order, it clearly does not impact the following individuals:
- Foreign nationals with H-1B/H-4, H-2B/H-4, L-1/L-2, and J-1/J-2 Visas valid as of June 24;
- Foreign nationals present in the United States in a nonimmigrant status as of June 24 and seeking a change to H-1B/H-4, H-2B/H-4, L-1/L-2, or J-1/J-2; or
- Foreign nationals present in the United States in H-1B/H-4, H-2B/H-4, L-1/L-2, or J-1/J-2 status seeking an extension of stay, amended petition, or, as applicable, change of employer.
As has been the case with each COVID-19-induced travel restriction, U.S. Lawful Permanent Residents, spouses and children of U.S. Citizens, and individuals deemed to be in the “national interest” are exempt from the Executive Order. Likewise, this Executive Order explicitly carves-out H-2B workers who are essential to maintaining U.S. food supply chains, and through omission, will continue to permit J-1 research scholars and physicians to apply for visas and enter the United States through the rest of the year.
In addition, the following visa classifications, amongst others, are also not included through omission:
- H-2A temporary agricultural workers;
- E-1/E-2 Treaty Traders/Investors;
- E-3 Australian specialty occupation workers;
- F-1/M-1 nonimmigrant students – including those employed through Curricular Practical Training (“CPT”) and Optional Practical Training (“OPT”);
- H-1B1 Singaporean/Chilean specialty occupation workers;
- I nonimmigrant international journalists;
- O nonimmigrants of extraordinary ability;
- P nonimmigrants artists, athletes, entertainers, and performers;
- TN nonimmigrant professionals under NAFTA; and
- R nonimmigrant religious workers.
Of course, almost all visas remain unavailable due to the ongoing closure of U.S. Consulates for routine, in-person services. One key exception is that U.S. Consulates in Australia continue to process mail-in applications for qualifying E-3 Visa Applicants.
The Executive Order proceeds to direct the Department of Homeland Security and the Department of State to ensure that any foreign national applying for a visa abroad and seeking entry to the United States first submits biometrics, and also directs the Department of Homeland Security to issue new regulations for the H-1B program. The Secretaries of the Departments of Labor, State, and Homeland Security shall provide feedback on the Order within 30 days of its effective date and every 60 days thereafter, advising on any needed changes at those times. Lastly, the Executive Order also extends the prior suspension of immigrant visa issuance through the remainder of 2020, as well.
Though we are relatively certain as its intended effect – to cut-off the issuance of new H-1B/H-4, H-2B/H-4, L-1/L-2, and certain J-1/J-2 Visas for the remainder of the year – the Order’s plain language leaves open numerous questions. First and foremost, it is unclear whether it will limit the admission of Canadian and Bermudian Citizens in the affected classifications as such individuals are visa exempt. Moreover, the Order uses of the conjunctive “and” to suggest all three criteria must be met. These criteria are alternatively narrow (must be outside of the United States on June 24, 2020, but not necessarily after that date) and broad (having a – or, any – nonimmigrant visa that is valid on June 24 would appear to make a foreign national exempt from the Order).
As such, we do expect further updates on the Order’s interpretation and implantation over the coming days. We will continue to update our blog and provide E-Alerts to advise on the latest developments. As always, we strongly encourage you to reach out to our office if you have any questions regarding if or how this latest Executive Order impacts you and your family. Green and Spiegel has successfully obtained waivers of travel restrictions during the COVID-19 pandemic and with this new Executive Order in place, we will continue to seek meritorious waivers on behalf of our clients.
