Trump Immigration Executive Order: What about Canadian H1B and L1 'Visas'
Update: As of June 24, 2020, CBP headquarters has confirmed that CANADIANS ARE EXEMPT FROM THE PROVISIONS OF THE LATEST TRUMP IMMIGRATION ORDER, this includes H1B and L1 holders. Guidance has reportedly been issued to local ports notifying CBP of this policy position.
This post discusses the mechanics of this Canadian exemption for H1B, L1, or J ‘Visa’ holders under Proclamation 10014. As reviewed in detail in our initial post about Trump’s Immigration Executive Order, with a June 24, 2020 effective date, we discussed how this will impact visa holders seeking entry from abroad through the H1B professional worker visa, L intracompany transfer visa (likely including both L1A and L1B), J1 visa, and the H2B. This also impacts al the dependents of these visa types including H4, L2, and J2.
The Immigration Order specifically impacts those who find themselves outside the United States now or in the future, without a valid current visa stamp.
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.
So Who is Not Impacted by the Trump Immigration Executive Order?
The Executive Order makes it clear that the following groups are not impacted:
Those who are inside the U.S.. This means H1B and L1 Visa status holders who are physically located in the U.S. could still file extensions, change of status applications, and Green Card applications without issue.
Those who already have valid H1B and L1 Visas in their passports should be fine to re-enter the U.S. using those valid visa stamps.
F1 students and those in OPT or STEM OPT have not been impacted by this Executive Order.
E1, E2, and E3 Visa holders are not impacted by the Immigration Order.
O1 Visa holders are not impacted by the Order.
Mexican and Canadian TN holders are not impacted, and should be allowed to travel, absent any applicable COVID-19 related travel restrictions.
Other nonimmigrant visa types not listed in the Order should not be impacted.
Those who have other official travel documents other than a visa (i.e.: a transportation letter, an appropriate boarding foil, or an advance parole document) can still travel, so long as the document is valid on June 24, 2020 or or issued on any date thereafter that permits a person to travel to the United States and seek entry or admission.
Does Trump’s Executive Order Impact Canadian H1B and L1 Employees?
It is this last point, regarding other official travel documents other than a visa, listed in the Trump Immigration Executive Order of June 22, 2020, in Section 3, which begs the question of how Canadian H1B and L1 holders are impacted if at all. Let’s touch on this.
What is special about Canadian citizens in the context of US immigration law, is that they are visa-exempt for most visa types, including H1B, L1, O1, TN, and more. When examining part (iii) in the following section of the Executive Order closely, it thus appears that Canadians might be exempted and be allowed to enter in H1B and L1 status:
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.
Since Canadians are visa-exempt and do not need an H1B or L1 visa stamp, it stands to reason that they are in fact allowed to enter using just their Canadian passport and the applicable USCIS I-797 approval notice or I-129S (in the case of a blanket L approval).
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