FAQ - New Proclamation Suspending Entry of H-1B, L-1, J-1, and H-2B Nonimmigrant

Seyfarth Synopsis: President Trump issued a new entry ban directly affecting foreign nationals in H-1B, H-2B, J-1 and L-1 status.  Below is a list of 20 questions and answers that have surfaced in the first 24 hours since the proclamation was published.

1.  When does the entry ban take effect and for how long?

The entry ban portion of the proclamation takes effect at 12:01 a.m. Eastern Standard Time on June 24, 2020.  The proclamation also extends a previous order that banned certain immigrant visas (i.e., green cards) from being issued by the U.S. Department of State.  Both provisions will last until at least December 31, 2020.

2.  Who is affected by the entry ban?

This new Proclamation temporarily suspends entry to the U.S. of foreign nationals who are outside of the U.S. and who need to apply for a visa stamp at a U.S. Consulate outside of the U.S.  The impacted visa categories are: H-1B, H-2B, J-1, and L-1.

The restriction also applies to dependent family members who are outside of the U.S. and who need to apply for the corresponding dependent visa stamp.  The impacted visa categories are: H-4, J-2 and L-2.

3.  Who is not affected by the entry ban?

• Any foreign national who is in the U.S. as of June 23, 2020 holding H-1B, H-2B, H-4, J-1, J-2, L-1 or L-2 status;
• Any foreign national who already has a valid, unexpired H-1B, H-2B, H-4, J-1, J-2, L-1 or L-2 visa stamp as of June 23, 2020;
• Individuals who have a valid Advance Parole document;
• Lawful Permanent Residents (Green Card holders);
• Individuals holding other official travel documents other than a visa (transportation letter or boarding foil); and
• Spouse or child of a U.S. Citizen.

4.  If I am subject to the entry ban, are there any exemptions?

Yes, exemptions may be available for foreign nationals who will provide temporary labor or services essential to the U.S. food supply chain as well as for foreign nationals whose entry would be in the national interest of the U.S.  Factors that will be considered to be in the national interest include individuals who are:

• critical to defense, law enforcement, diplomacy, or national security of the U.S.;
• involved with the provision of medical care related to COVID-19 for individuals who are currently hospitalized;
• involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19; and
• necessary to facilitate the immediate and continued economic recovery of the U.S.

5.  Can employers continue to file H-1B and L-1 petitions with USCIS seeking to change, amend, and extend status?

Yes, the entry ban does not affect an employer’s ability to file petitions with USCIS including change of employer, change of status, amendment, and extension petitions.

6.  Does the entry ban affect pending, approved, or soon-to-be-filed H-1B cases filed under the H-1B cap?

The entry ban will not affect an employer’s ability to continue to file H-1B cap cases through June 30, 2020.  We also do not expect the entry ban to affect USCIS adjudication of H-1B cap cases.  It appears, however, that the ban is written to prevent (until January 1, 2021) – at least in part – the entry of H-1B specialty occupation workers who were selected in this year’s H-1B lottery.  Any such H-1B cap worker outside of the U.S. on June 24, 2020 could not have held on June 24th a (then) valid and unexpired H-1B visa and so would in fact be subject to the entry ban.

However, it is unclear whether, for example, an F-1 student who is in the U.S. on June 24th in F-1 status would be eligible to leave the U.S. and apply for the H-1B visa stamp later in order to reenter the U.S. to work in H-1B status – reportedly the administration intended the entry ban to apply to that situation but as written, the entry ban may not apply unless you were outside of the U.S. on June 24th.  Additional clarification will be needed from the administration before a definitive determination can be made on this point.

7.  Can H-1B and L-1 workers who already have a valid visa stamp in their passport continue to travel internationally?

As listed above, foreign nationals who are in possession of valid, unexpired H-1B and L-1 visa stamps as of June 23, 2020 may continue to travel internationally – provided COVID travel restrictions do not prevent them from doing so.

8.  I am currently in the U.S. and not subject to the entry ban but my H-1B or L-1 status is expiring during the entry ban period. What are my options?

For foreign nationals in H-1B status, your employer may file an H-1B petition to extend your H-1B status with USCIS.  As stated above, the entry ban does not affect an employer’s ability to file an H-1B extension petition.  A timely-filed H-1B petition can extend your work authorization in the U.S. for up to 240 days beyond your I-94 expiration date.

For foreign nationals in L-1 status, your employer may similarly file an L-1 petition to extend your L-1 status with USCIS.  The same 240-day provision applies.  For many L-1 workers, this process will be different than the L-1 Blanket process that you may have used when applying for previous L-1 visas.  Importantly, current USCIS request for evidence (RFE) and denial rates for L-1 service center petitions are high for certain occupations.  Please work closely with your employer and your Seyfarth team on case-specific options and strategies.

9.  Can H-1B and L-1 workers who already have a valid visa stamp in their passport on June 23rd or  who were in the U.S. on June 24, 2020 extend their H-1B or L-1 status through a service center petition and then apply for an H-1B or L-1 visa stamp in order to travel internationally?

Under a literal reading of the entry ban, the following three conditions must be met in order to be subject: 1) outside the U.S. on June 24th; 2) no valid visa stamp; and 3) no other travel document such as an advance parole.  If agencies interpret the entry ban the same way, and of course if U.S. Embassies and Consulates reopen for visa issuance, it is conceivable that H-1B or L-1 workers who have valid visa stamps as of June 23rd or are in the U.S. on June 24th may be able to apply for visa renewals during the entry ban period.  However, agencies could apply a different interpretation so caution is advised until there is greater clarity on this point.

10.  Can I apply for my visa stamp inside the U.S.?

Unfortunately not.  There is no mechanism for applying for an H, L, or J visa stamp within the U.S.

11.  I am Canadian and hold H-1B or L-1 visa status. Will I be allowed to re-enter the U.S. if I travel internationally?

Yes.  As Canadians citizens are visa exempt, they are not required to obtain a visa stamp at a U.S. Embassy or Consulate for admission to the U.S.  You should continue to present your approval documentation and proof of continued employment when you re-enter the U.S. following international travel.

12.  I am Canadian. Can I still apply for L-1 status at the border?

A literal reading of the order would suggest that this is still possible.  However, Customs and Border Protection is still awaiting guidance from CBP Headquarters with regard to how to implement the order.  Caution is advised until we have more guidance.

13.  I hold H-1B or L-1 status and I am not subject to the entry ban. However, I am unclear about my dependents. How do I know whether the entry ban affects them? 

Spouses and children who already hold H-4 and L-2 visa stamps are not affected by the entry ban.  They may continue to travel internationally during the entry ban period.  Spouses and children who are outside the U.S. as of June 24, 2020 and do not have valid H-4 and L-2 visa stamps will be subject to the entry ban.  Please also note that the proclamation does not affect eligibility requirements or processing of H-4 or L-2 Employment Authorization Document (EAD) applications.

14.  My dependents are outside the U.S. and do not hold H-4, L-2, or J-2 visas. Can they enter the U.S. as visitors using a B-2 visa stamp or visa waiver (ESTA)?

While Consular closures and COVID travel restrictions make travel to the U.S. challenging in general, dependents holding valid B-2 visas as well as those from visa waiver countries with approved ESTA registrations should be able to enter the U.S. during the entry ban period for brief visits, consistent with B-2 visa requirements or ESTA program restrictions.

15.  My visa stamp is expired but I hold a green card-based advance parole document. May I continue to travel internationally?

As listed above, advance parole is an acceptable entry document during the entry ban period.  Travelers should take note of their (and their family’s) advance parole expiration dates, file timely extensions, and pay close attention to worldwide travel restrictions associated with COVID-19.

16.  I am currently in the U.S. in J-1 status. How does the entry ban affect me?

The entry ban does not affect all J-1 nonimmigrants.  Only foreign nationals in J-1 status who are participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program (and their dependents) will be subject to the entry ban.  Foreign nationals in J-1 status who are completing degree programs and working pursuant to Academic Training are not affected by the travel ban.  Those who are subject to the entry ban should reach out to their program sponsors for additional details.

17.  I currently hold an F-1 student visa and I am working pursuant to Optional Practical Training (OPT). May I continue to work on OPT (or STEM OPT) and travel internationally using my F-1 visa? What if I have a pending or approved H-1B under this year’s H-1B cap?

The entry ban does not directly affect an F-1 student’s ability to complete their academic program, work in the U.S. pursuant to OPT or STEM OPT, or travel internationally with an unexpired F-1 visa stamp and supporting documentation. 

If your employer filed an H-1B cap petition for you which will change your status from F-1 to H-1B on or after October 1, 2020, you should not travel internationally once your H-1B is activated until the entry ban is lifted AND U.S. Embassies and Consulates resume H-1B visa issuance OR until there is clarification from applicable agencies regarding eligibility in this situation (see above FAQ).  If your H-1B cap petition was filed with a consular notification request which does not change your underlying status, your F-1 visa will be unaffected – you should contact your Seyfarth team to discuss whether international travel is advisable in order to obtain an H-1B visa so that you can work after your OPT ends.   

18.  Does the entry ban affect employees holding TN, O-1, E-3, and H-1B1 status?

The entry ban does not affect work authorization or international travel for foreign nationals holding TN, E-3, and O-1 status, though the suspension of Consular services makes it challenging to apply for visa stamps.  While we do not believe that the entry ban applies to foreign nationals from Singapore and Chile who hold or will apply (once Consulates reopen) for H-1B1 Free Trade visas, caution should be taken as this visa classification may be conflated with the H-1B which can result in potential entry issues at the border.

19.  Does this proclamation affect my ongoing green card process?

The proclamation extends a previous order that banned certain immigrant visas (i.e., green cards) from being issued by the U.S. Department of State during the course of a consular processing application abroad.  However, this proclamation does not affect a foreign national’s ability to apply for a state-side green card through the filing of an I-485 Adjustment of Status Application.

20.  The proclamation refers to potential regulatory changes for the H-1B visa category as well as for employment-based green card applications. Can you elaborate?

The proclamation instructs the Secretary of Labor and the Secretary of the Department of Homeland Security to “consider” promulgating regulations or take other actions to ensure that foreign nationals holding H-1B status as well as those seeking permanent residence in the second and third employment-based categories do not “disadvantage” the U.S.

Regulatory changes are subject to more deliberation and often involve formal notice and comment periods.  When the notice and comment period is by-passed, that often leads to litigation.  We will continue to monitor developments related to future regulations that may impact visas and sponsorships in the U.S. and provide updates and analysis as appropriate. 

 

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop.  Should you have any questions, please alert your Seyfarth Shaw contact.