Does Trump’s Immigration Executive Order Apply to me if I was Inside the U.S. on June 24, 2020?

With the new Executive Order, impacting H1B, L1, J1, and H2B Visa holders, we are getting lots of people asking “Does Trump’s Immigration Executive Order impact me?” The answer, per the plain language of the Executive Immigration Order should be simple. Those in the U.S. on June 24, 2020 and anyone who held a valid visa on June 24, 2020, whether inside or outside of the U.S., should be exempt from the Immigration Proclamation. Unfortunately it already appears that the Department of State is not sticking to the clear reading of several criteria.

As immigration lawyers, companies, individuals, industry groups, and others try to parse through the attacks on business immigration, most recently as a result of the Trump Administration's June 22, 2020 Executive Immigration Order, concerns continue to emerge. In an attempt to reduce the impact of this most recent Order on the business community, and the lives of the incredible international talent, so vital to innovation in the U.S., it is important to be able to hold the government to a proper reading and application of these Proclamations.

In this article, we look at two specific criteria from the Order that are already causing concern. How the Department of State appears to be interpreting the language of the Immigration Order could make it farther reaching than the plain language appears to allow. 

View our initial in-depth analysis of the entire immigration Order here.

Disclaimer: This post discusses possible arguments to hold the government to the text of the Immigration Order. Note that this is not legal advice. Also, the practical implementation of the Order is still unclear. Nobody should make any decisions or leave the U.S. without consulting with immigration counsel and getting legal advice on their situation and the risks involved.

Does the Immigration Executive Order Apply to Me?

The exact phrasing of Section 3 of Trump's Order provides very clearly that:

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.

Note that importantly there is an "and" joining all three points together. So this indicates via a plain reading that an individual must satisfy every one of the three criteria to be subject to the suspension and limitation on entry. 

A plain reading appears to be too much to ask for, however as we will see. Let's look at the first two criteria in particular.

What if I was inside the U.S. on the effective date of June 24, 2020, per the Immigration Executive Order? 

If the Department of States and the Consular Officers apply the language of the Order as it stands, then proving that a person was inside the U.S., on June 24, 2020, should mean that the individual is eligible for H1B, L1, and other visas. Further, they should also be allowed to enter the U.S. 

We seek to hold the government to the wording of the Immigration Order, or at least to try as this would greatly reduce the burden on companies and Visa holders. Again, the argument here is that any person inside of the U.S., in any visa status on June 24, 2020, and even those inside the U.S. without a Visa (such as those on ESTA or who entered in another visa-exempt category), do not fall under the first criteria. Therefore they should be free to travel, re-enter and obtain a Visa.

To reiterate, we are not advising in any way that people should travel based on this argument until the issues are resolved in practice, but we feel it is important to point out that this is the plain reading. 

In a series of Department of State (DOS) Tweets, found here, the DOS unfortunately already seem to contradict this first prong. One part of the DOS exchange on Twitter on June 23, 2020, included the following:

Question: "if someone departs usa nxt month, will that person be issued a visa for coming back?"

DOS Answer: "If you depart the US, you will need a valid visa to return and we will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31 unless an exception applies."

This response from DOS indicates that there is already a deviation from the plain language of the Order. The DOS seems not to be sticking to the first prong analyzed above. This does not mean that they are correct and we would argue they are blatantly incorrect in their application of the Executive Order. There is an apparent discrepancy here, one that will be monitored as to the practical implication and outcome. Until then, it is wise to remain conservative.

It is important to note that there is already litigation in the works regarding this Executive Order, and we will update this post as we have more information to share.

What if I have a Visa, any valid Visa, on the effective date of June 24, 2020, per the Immigration Order? 

The second prong of the Order explicitly states that to be subject to the limitations on Visa issuance and entry into the U.S., it must be the case that an individual "does not have a nonimmigrant visa that is valid on the effective date of this proclamation."

As can be seen from a reading of the Immigration Order, there is no specificity as to which type of Visa one has to have held on June 24, 2020. The plain meaning is that if you held a valid Visa on June 24, 2020, you should not be subject to the Order's restrictions on obtaining an H1B, L1, J1, or H2B Visa.  

Again, it is still to be seen if the Department of State will honor the plain language of the Order. It would certainly be welcome for the DOS to directly address these issues in an official format. 

Whether the Trump Administration is guilty of poor drafting, leaving lots of ambiguity in the Immigration Order, or whether planned, does not change the fact that the wording of the Proclamation is what we have been given. It is this wording that the government should be held to applying.

The full text of the Executive Order can be found here.

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