TRUMP ISSUES WIDE RANGING EXECUTIVE ORDER BANNING NEW LEGAL EMPLOYMENT BASED IMMIGRANTS UNTIL 2021

Last night, President Trump updated and expanded his April Presidential Proclamation that had banned legal immigrant visas for 60 days.  Last night’s ban extends the April legal immigration ban through December 31, 2020 and adds many temporary employment-based nonimmigrant visas, including H-1Bs, L-1s, J-1s, and H-2Bs. 

It seems certain that the President will be sued and so any information contained here is subject to the outcome of the lawsuits.

The ban effects many types of employment-based immigration, such as:

Green Cards (Immigrant visas) Consular Processing. 

All Consular Processing green cards continue to be banned, as they have been since April.  There are a few exceptions:

• Permanent Residents of the US;
• Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);
• Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date).
• Spouses and children of US Citizens;
• EB-5 investors;
• Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;
• Special Immigrants in the SI or SQ Class and their family members; and
• Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

Green Cards (Immigrant visas) Adjustment of Status

No effect whatsoever.  Many Adjustment of Status interviews, of course, have been delayed because of COVID-19, although we have seen that the USCIS is approving some employment based green cards without an actual visa interview.

H-1B, L-1, J-1, and H-2B visas

• Beneficiaries approved for H-1B and L-1s will not be allowed to enter the US unless they currently have a valid visa stamp, even if they have an approved I-797.
• H-1B and L-1 visa stamps cannot be granted at embassies or consulates unless the H-1B or L-1 is for one of the exemption categories below. 
• If you have an H-1B or L-1 approval and you are in the US, you should not travel outside the US unless you already have a valid H-1B visa stamp in your passport and you intend to return to the US prior to the expiration of that visa stamp.
• H-1B and L-1 amendments, extensions, and transfers continue to be permissible.
• H-1B cap petitions that are based on a change of status (e.g. F-1 to H-1B) should be approved with a new I-94 card for the H-1B status.  The ban does not prohibit or effect the change of status, however, individuals changing status to H-1B should not leave the US after October 1 as they will not be able to return without a valid H-1B visa stamp.  
• Similar prohibitions apply to J-1 and H-2B visas, although the J-1 visa ban is limited to interns, trainees, teachers, camp counselors, au pairs, and summer work programs.  Other J-1s may obtain visas and enter the US.
• The ban also applies to the H-4, L-2, J-2 dependent classifications.  Spouses and children in the US as dependents should not travel abroad unless each family member has a valid visa stamp in their passport.  Dependents who are currently abroad will not be allowed to enter the US unless they currently have a valid visa stamp.

 Exemptions to the H-1B, L-1, J-1, and H-2B nonimmigrant visa ban

The visa ban does not apply to:

• any lawful permanent resident of the United States;
• any alien who is the spouse or child of a United States citizen;
• any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
• any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

National Interest Entry Requests

The Proclamation allows for exemptions to the nonimmigrant visa ban if the Beneficiary is one of several categories deemed by DOS or DHS to be “in the national interest”.  It is expected that the DOS and DHS will issue details about these exemptions and the process to request an exemption.  The Proclamation’s named categories include 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;
• are necessary to facilitate the immediate and continued economic recovery of the United States; or
• are children who would age out of eligibility for a visa as a result of the visa ban.