Workers Already in U.S. Are Exempt from Suspension of New Work Visas
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On June 22, 2020, President Trump issued an executive order suspending the issuance of a variety of United States work visas until the end of 2020.  The affected visa classes include H-1B, H-2B, J-1, and L-1, as well as derivative visas for family members accompanying the primary visa applicants.

While the order had been expected for some time, the White House did not provide many details until the order was actually issued, and the final text differs in some important respects from what had been anticipated in many press outlets.

Crucially, the order is a bar on entry into the United States of persons in those visa classes, not a bar on adjusting to one of those statuses while already in the United States, extending one’s stay in one of those statuses, or remaining in the United States for the balance of an already-approved stay.  This seemingly subtle distinction should exempt a large swath of H-1B and J-1 applicants, in particular, from the order.  Anyone who is already present in the United States on the effective date of the order – 12:01 a.m. Eastern time on June 24, 2020 – is categorically unaffected.  That means, for example (assuming that the beneficiary is otherwise qualified):

·      a recent university graduate already in the U.S. may change statuses from F-1/OPT to H-1B;

·      an existing H-1B visa holder already in the U.S. may change from a position with one employer to a new position with a different employer;

·      an L-1A or L-1B visa holder already in the U.S. may change positions within the sponsoring company or a qualifying corporate affiliate;

·      an H, J, or L visa holder may extend his or her stay in the U.S. 

These changes can be pursued whether or not the sponsoring employer has already filed the relevant petition at the time the executive order comes into force; the petition need not have been approved or even in process on June 24.

Furthermore, despite speaking in terms of “suspension and limitation on entry,” the order expressly does not apply to people who are outside the country at the time the order takes effect, but have already been issued valid visas.  They may use the visas to enter as normal.

Conversely, an already-approved petition as to which a visa has not yet been issued will not avail a beneficiary.  Thus, someone who has an I-797 approval notice, and has left the United States anticipating a consular interview and “visa stamping” before returning, will no longer be able to obtain his or her visa.  Similarly, family members who are otherwise qualified for H-4 or L-2 derivative visas but who are outside of the United States will not be able to obtain those derivative visas even if their spouses’ or parents’ own visas were issued, or the spouses or parents’ change-of-status petitions approved, before the effective date of the executive order.

While there is a narrow exception for persons entering the United States to provide services essential to the food supply chain, and another “national interest” exception that has yet to be fully defined, two other, broader exceptions that had been publicly anticipated do not appear in the order: one for university professors and researchers, and another for child-care providers.

This order is both brand-new and takes a novel approach to the immigration system, so many of its full implications have yet to be worked out.  In particular, while the plain language of the order suggests that a person who is present in the U.S. at the decisive time – 12:01 am on June 24 – could thereafter depart the United States and be issued an H, J, or L visa without any hindrance from the order, it remains to be seen if that reading will be honored in practice.  Prudent sponsoring employers and visa beneficiaries would do well to avoid travel outside of the U.S. by the beneficiaries until further written guidance is available, or there have been working examples of how the administration seeks to implement this portion of the order.

As with other recent executive actions on immigration, litigation over the order is likely, although the outcome is unpredictable.  We will post important developments here. Readers with questions about the effects of the order on their particular situations are welcome to contact Adam Mocciolo.

Posted in Executive Order

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