Nonimmigrant visa application

Latest updates regarding President Trump’s order temporarily suspending certain employment-based nonimmigrant visas

President Donald Trump signed a proclamation in late June temporarily suspending entry into the United States of certain employment-based visa holders.

The proclamation impacts H-1B (specialty occupation), L (intracompany transfer), H-2B (temporary worker) and some J (exchange visitor) visas. The new restrictions will last until at least the end of the year.

The Department of State and Department of Homeland Security have both sporadically issued updated guidance since the order took effect June 24. The latest details and information about the proclamation follows below:

Specifics of proclamation

The proclamation applies only to foreign nationals who:

  • Were outside of the U.S. the day the proclamation took effect (June 24);
  • Do not already have a valid H-1B, L-1, H-2B or J visa stamp in their passport (if seeking entry in one of those categories); and
  • Do 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 the proclamation or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.

J-1 exchange visitor categories and H-1B1 visas

Not all J-1 exchange visitor visas are affected by the proclamation. The categories that are not impacted include:

  • College and university students
  • Government visitors
  • International visitors
  • Physicians
  • Professors
  • Research scholars
  • Secondary school students
  • Short-term scholars
  • Specialists

Additionally, the H-1B1 visa classification is not subject to the latest order from Trump, according to the U.S. Consulates in both Singapore and Santiago.

FY 2021 H-1B lottery selections

The proclamation has not impacted, and is not expected to impact, USCIS’ adjudication process of H-1B visa petitions.

However, individuals selected in the FY2021 lottery who were outside of the United States on the effective date of the proclamation (June 24) and do not have a travel document or visa that would allow them to enter the country will be subject to the measures of the order.

H-1B and L-1 visas issued in March 2020

Individuals who were issued an H-1B or L-1 visa in March 2020 or prior but could not travel to the United States because of restrictions related to the coronavirus (COVID-19) pandemic are not subject to the measures in the proclamation.

They should have the ability to enter the U.S. when the COVID-19 restrictions are lifted.

H-1B, L-1 and J-1 exemptions; Dependent family members

The Department of State clarified on Twitter that, “generally,” an individual who was legally in the U.S. with an H-1B, L-1 or J-1 visa the day the proclamation took effect (June 24), but has since left the country is not subject to the new restrictions and may be able to apply for a visa renewal at an embassy or consulate.

Further, the Department of State confirmed that it will exempt dependent family members from the latest order in order to reunite family members that are currently separated. In other words, dependent spouses and children should be permitted to apply for and enter the U.S. with an H-4, L-2 or J-2 visa if their spouse/parent is in the U.S. in valid status.

“Generally, if you held an H1B but it is no longer valid, but you were in the US lawfully as of June 24, 2020 and not out of status, you are not subject to the proclamation, and your spouse/children may apply for derivative visas,” the tweet read.

Updated national interest exceptions

The State Department released updated guidance in mid-August expanding eligibility for a national interest exception under Trump’s proclamation otherwise suspending certain nonimmigrant visas.

The new criteria includes exemptions to the Executive Order for employees on H-1B and L-1 visas who are traveling as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic; those seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification; and technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States, amongst others.

Read the full guidance from the State Department

The proclamation continues to face multiple lawsuits in federal court.

Impacts on Canadian nationals

Canadian nationals are “visa exempt” and are not required to get a visa stamp at an embassy or consulate.

Therefore, Canadians entering the U.S. in valid H, L or J nonimmigrant status are not subject to the proclamation and should be permitted entry if they have a valid I-797 Approval Notice or previously adjudicated petition. However, the restrictions in the executive order may apply to derivative dependents who are not Canadian citizens.

Furthermore, Customs and Border Protection (CBP) posts have reported that they should continue to accept for processing initial L-1 applications (as well as for those who are intermittent and commuters) because of the “visa exempt” status of Canadians.

The U.S. border with Canada will remain closed for “non-essential” travel until at least Aug. 20 because of the COVID-19 pandemic.

Proclamation facing multiple lawsuits

The proclamation from Trump faces multiple lawsuits, including one filed recently by the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Retail Federation, amongst others.

“The Proclamation takes a sledgehammer to the statutes Congress enacted with respect to high-skilled and temporary worker immigration,” that suit argues, in part. It continues: “The Proclamation stunts the ability of businesses to identify the best talent for a position; indeed, it causes many important positions to go unfilled entirely, stalling projects that would otherwise create jobs.”

Consular operations

The Department of State began the “phased resumption of routine visa services” in mid-July.

Embassy and consulate re-openings are occurring on a country-by-country basis, depending on local conditions, which include “medical infrastructure, COVID-19 cases, emergency response capabilities and restrictions on leaving home.”

DOS suspended “routine visa services” at all U.S. Embassies and Consulates across the globe in mid-March “in response to significant worldwide challenges related to the COVID-19 pandemic.”

Recommendations from Garfinkel Immigration Law Firm

To avoid risk of being unable to reenter the U.S., the attorneys at Garfinkel Immigration continue to urge foreign national employees and any dependent family members who are currently in the U.S. and maintaining nonimmigrant status not to travel outside of the U.S. at this time and to delay international travel as much as possible — even if they are exempt from the proclamation.

Should foreign national employees who are exempt from the proclamation decide to depart the U.S. and travel internationally, they should monitor the previous Presidential Proclamations which are also still in effect and which limit entry to the U.S. from Brazil, Schengen area countries, U.K., Ireland, Iran and China within 14 days prior to arrival to the U.S.

They should also ensure they have the proper entry documents if traveling through a third country to quarantine.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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