Trump's Executive Order Impacting H1B and L1 Visa Holders
Read about the latest update to this Executive Order here.
As expected, President Trump has released a follow up Executive Order to the Proclamation that was issued on April 22, 2020 which restricted Green Card processing for those outside of the U.S. Many of the restrictions we expected to be in this Executive Order are now in fact confirmed as provided in detail below with some important nuances. This order is set to last from June 24, 2020 through until December 31, 2020 with possible extensions thereafter.
Disclaimer: The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Legal standards and rules often change.
Summary of June 22 Immigration Executive Order
The main impact of the new Executive Order that will be felt by U.S. employers is related to the limit on entry of H1B and L1 Visa holders currently outside the U.S. who do not have valid visas. These individuals will not be allowed to enter unless they fall under a few very narrow exceptions.
In the Order (Proclamation 10014), it is stated that the Secretary of Labor and the Secretary of Homeland Security reviewed nonimmigrant programs and determined that there are certain categories presenting “a risk of displacing and disadvantaging United States workers during the current recovery.”
Which Visa Holders are Impacted by the Immigration Executive Order? Only H1B and L1 Visas?
Those seeking entry from abroad through H1B, L (likely L1A and L1B), J1, and H2B visas (all dependents including H4, L2, and J2) who are outside the United States, without a valid current visa stamp, are impacted.
An important nuance of the Executive Order seems to provide that those who already have a valid visa issued prior to June 24, 2020 will be allowed to enter the U.S. even if traveling abroad in the future or already outside of the U.S. In some ways, this seems to show that one of the main targets of this Order are those who may be waiting to obtain new H1B visas abroad including those H1B applicants who either have recent H1B approvals or who have pending H1B Cap cases for fiscal year 2021.
This is the text of the Order (from Section 3) that seems to verify the visa issuance nuance regarding who is allowed to still enter the U.S., and it provides:
The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:
(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
Please Note: Since the publication of this article Section 3(ii) has been amended. Read more here.
Please read out latest article discussing whether the Order applies to those who were inside the U.S. on June 24, 2020 and those who held any valid visa on the same date, whether inside or outside to the U.S.
Which Visa Applicants are Exempted from the June 22 Immigration Executive Order?
There are not many exemptions in this Order although it is made clear that this does not impact Green Card holders nor the children and spouse of U.S. citizens. Further, the Order provides a carve-out for those above-mentioned visa holders who can either show they provide temporary labor or services essential to the United States food supply chain or who can show their entry would be in the national interest. This section of the Order provides:
(i) any lawful permanent resident of the United States;
(ii) any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;
(iii) any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(iv) any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
It is the Consular Officer who will determine whether either exception has been met.
Who would Meet the ‘National Interest’ Exception?
The Order provides that it is up to the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security to establish standards to define categories of individuals who fall within the exception. The Order specifically lists out examples including those who 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.
Will the U.S. Consulates Consider any Requests for H1B or L1 Visas after June 24, 2020?
This is an interesting point as a reading of Section 4 of Trump’s Order impacting H1B and L1 holders among others, discusses “Implementation and Enforcement” and provides that a consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation. The exceptions are discussed above.
When reading Section 3 and Section 4 together they seem to not only to limit the entry of L1 and H1B Visa applicants who did not have visas issued prior to June 24, 2020 but it seems to go further and indicate that a consular officer will not even process Visa applications after June 24, 2020. If that is in fact what will occur in practice, yet to be seen of course, then it appears H1B applicants and others, for example, H1B employees who were selected in the H1B Cap lottery and who have since obtained a Consular processing H1B case approval, will not be able to get any sort of jump start processing their Visa for entry as soon as possible after this Order expires.
Are F1 Student Visa Holders Impacted?
Although it was thought that this Order might also impact international students and their related OPT work authorization, this has not been the case. Of course, this does not prevent other proposals to come forward but for now, these students seem to be safe.
Note that while the Order does not place any restrictions on incoming student visa holders (F1) and their dependents (F2), with consulates closed due to COVID-19 or not operating to their full potential, and schools not confirming their in-person fall classes, for now prospective F1 students continue to remain affected.
Timing of the June 22 Immigration Executive Order
The Order is effective on June 24, 2020. As provided in the new EO the changes will “...expire on December 31, 2020, and maybe continued as necessary. Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”
What this leaves us with is the possibility that the restrictions outlined above may last into 2021. Of course with the pending elections, much is uncertain.
Invitation for Further Rulemaking
The Order also invites the Secretary of Labor to consider additional rule changes aimed at EB2 and EB3 Green Card rules as well as H1Bs to ensure that these visas types do not disadvantage United States workers.
Our Recommended Actions for Employers
To minimize the impact on recruitment and to find solutions allowing existing employees to re-enter, every company should:
Understand Visa Options: Carefully consider all visa options unaffected by this Order. Among others, this includes:
O1 (Extraordinary Ability) Visa
B1 in lieu of H1B professional worker Visa
B1 Business Visitor
E visas in certain cases including the E2 for Treaty Investors
E3 and H1B1 Visa options for those from Australia, Singapore, and Chile
TN Visas for those from Mexico and Canada
2. Verify Citizenship: It is worth assessing the data that lives in your immigration platform to make sure you are not overlooking any options for international employees. For example, an Australian employee does not have to use the H1B Visa to enter as a professional work but instead could utilize the E3 Visa in many cases.
3. Amendment Filings if Available: Further for those with pending or approved H1B Cap cases that were filed as Consular processing matters should consider filing amendment applications to attempt to convert these approvals to change of status cases instead. This would avoid having to leave the U.S. to process an H1B Visa which would not be possible right now under this Order.
4. Update Immigration Policies: With the uncertainty that we are presented with in this Order, not to mention all the COVID-19 impacts on travel and Consular closures, it is critical to ensure that company immigration polices include flexibility to address this dynamic environment. This is not only a service to international Visa holder employees, who make up critical parts of virtually all successful companies, but also to try and keep recruitment and onboarding moving forward.
How Does Trump’s Executive Order Impact Canadian H1B and L1 Employees
Update: Click here for our updated article for Canadians!
This is a very interesting question and one we will have to see play out in practice. There seems to be an argument that because Canadian H1B and L1 employees are visa-exempt that they may still be able to travel during this time. The argument here would be related to Section 3(c) discussed above, essentially saying that anyone who has an official travel document other than a visa (citing a transportation letter, an appropriate boarding foil, or an advance parole document) which permits travel to the United States could be used to seek entry or admission. So the question will come down to whether a Canadian passport and USCIS I-797 approval notice will do the trick. Again, this issue is not specifically addressed in Trump’s Order for Canadians so we will have to see what happens in practice. We will update this post as we get more clarity.
Next Steps: Get More Insights and Stay Up to Date
Speak with experienced corporate immigration counsel to understand this new Order and how it impacts your company and international employee population. For those new to working with ImmiPartner please contact us here. Thank you!
The full text of the Executive Order can be found here.