The information in this FAQ is general in nature and does constitute legal advice.
When does this proclamation take effect? June 24, 2020. Except the
portion extending the suspension of immigrant visas which took effect June 22,
Till when is this order in effect? Until December 31, 2020. It is
also eligible for extension and is to be reviewed for changes and/or extension
every 30 days.
To whom does this order apply? It applies to non-permanent resident foreigners who are outside the U.S. at the time it takes effect.
NON-IMMIGRANT APPLICANTS (THOSE SEEKING STATUS
SUCH AS H-1B, L-1, TN, J-1, ETC.)
How does this order affect foreigners seeking to come to the U.S. to
work temporarily? The order bars entry into the U.S. of those seeking to
come to work. in H-1B, H-2B, L-1A, and L-1B status unless they already had a
visa of the corresponding type at the time the order took effect, June 24,
2020. It also bars entry of J-1s seeking to work in the U.S. as an intern,
trainee, au pair, teacher, camp counselor or in a summer work travel program.
It also bars the entry of family members of those barred who would be seeking
to enter in H-4, L-2 or J-2 status.
Does it prohibit the issuance of a visa to such individuals or just the
entry into the U.S.? The order specifically states that it bars entry of
such individuals who did not have a visa prior to the time the order took
effect. However, the order also states that it will be a consular officer’s
decision whether a visa applicant for meets an exception and is therefore
eligible for a visa. Reading these statements together, we believe the order
bars the issuance of visas to individuals in the specified categories of H-1B,
H-2B, L- 1, H-4, L-2, and certain J-1 and J-2. Additionally, it is important to
note that at the time of preparing this FAQ, regular visa services have been
suspended at U.S. consulates throughout the world which are open only for
emergency situations, and a foreign worker needing to get a visa is not an
emergency unless that worker meets one of the exceptions (e.g., medical
researcher working in U.S. to combat COVIID-19). As such, though the order does
not expressly say that it prohibits issuing specific visas, as a practical
matter, such visas will not be issued.
FOREIGN WORKERS CURRENTLY IN THE U.S.
I am in the U.S. lawfully and need to change my status to H-1B, H-2B,
or L-1; or I hold such status and need to extend it. Does this order affect
that change or extension of status? No. Individuals lawfully in the U.S.
who are eligible to change their status to H-1B, H-2B, or L-1, or the dependent
statuses of H-4 or L-2, are not affected by this order and may continue with
the process to change or extend status in the U.S.
I am lawfully in the U.S. in H-1B, L-1, H-2B, H-4, or L-2 status, but do not have a valid visa in my passport. Can I leave the U.S., obtain a visa and reenter the U.S.? The language of the order is conflicting. It says it only applies to those who are outside of the U.S. on the day it took effect, but there is sufficient language in it for us to believe that it bars all individuals from obtaining visas in these categories, and therefore, reentering the U.S. Additionally, as noted above, regular visa services are currently suspended throughout the world. Therefore, any individuals who hold the specified statuses, should carefully consider if a trip outside the U.S. is absolutely necessary, because it is highly likely that such individuals will not be able to return before year end, and possibly longer. Additionally, we do not have a way to help those who are stuck outside the U.S. return to the U.S.
I have applied or am eligible to apply for an employment authorization document (EAD). Does this order affect my EAD application or eligibility? No.
a Canadian in the U.S. in L-1/L-2 status. Since I do not need a visa to reenter
the U.S., am I safe to leave the U.S. and reenter? Sadly, we do not know. We are awaiting clarification on this point
since the order does not expressly address it. As an individual who already
holds L-1 or L-2 status and is in the U.S., we believe you should be able to
leave and re-enter the U.S., assuming there is no other travel ban in place
that effects your entry into the U.S. However, we caution all who are in this situation
that they leave the U.S. at the risk of not being able to return until after
the end of the year.
THE U.S. WHO ARE NOT SPECIFICALLY MENTIONED IN THE ORDER
I am a Canadian seeking to enter the U.S. in H, L or J status, will I be able to enter? The USCBP has clarified that the order does not apply to Canadians entering the U.S. in the restricted categories. As such, once travel restrictions at the U.S. – Canada border due to the pandemic are lifted, you should be able to enter the U.S. We recommend entering at the U.S. – Canada border as USCBP officers elsewhere may not be trained on this issue.
Can individuals outside the U.S. enter in other non-immigrant statuses to work in the U.S.? The order does not bar entry for those seeking to enter in other statuses, including E-1, E-2, E-3, O-1, R- 1 and TN. However, those seeking to enter another status, except Canadians seeking TN or O-1, must first obtain a visa to travel to the U.S. Since regular visa services are currently suspended at consulates across the world, it would be difficult for individuals to obtain a visa in one of those statuses. At this point, we believe that Canadians who are eligible to enter in TN or O-1 status may do so.
PERMANENT RESIDENCE / GREEN CARDS / IMMIGRANT VISAS
How does this order affect those applying permanent residence? It
extends the order issued April 22, 2020 with respect to those seeking to come
to the U.S. as immigrants, until the end of 2020.
Are all individuals applying for green cards or wanting to apply for green cards affected? No. The bar on immigrants only applies to those seeking immigrant visas at a U.S. consulate abroad. It does not apply to individuals in the U.S. who apply to adjust status to permanent residence.
I am in the U.S. and applying for permanent residence or about to
apply. Can my application move forward? Yes.
As long as your last step of permanent residence is applying to adjust status
from your current non-immigrant status (H-1B, H-4, E-3, etc.) to that of a
lawful permanent resident (green card holder / immigrant), you are eligible to
continue your application (I-485).
I am in the U.S. applying for permanent residence but my spouse (and
child) is outside the U.S. and will need an immigrant visa. Will my spouse (and
child) be able to continue that process? At this point in time, no. At
least until the end of 2020, issuance of immigrant visas is suspended unless
the individual meets one of the exceptions.
am in the process or about to start the process to apply for permanent
residence. How can I speed up my permanent residence application? Unfortunately,
permanent residence generally cannot be sped up. Some I-140 petitions, which is Step 1 or 2 depending on your
application pathway, can be filed with premium processing but none of the other
steps are eligible for premium processing.
I have heard that some colleagues who were getting close to having
their applications for permanent residence adjudicated have had them held by
USCIS because USCIS is not issuing green cards due to the ban. Is this true? USCIS
has, in some cases, held up the issuance of green cards because it has
interpreted the order to mean that green cards cannot be issued. This is not
our interpretation of the order and the American Immigration Lawyers
Association is working with USCIS to resolve this issue. Please note that even
subsequent to the April 22 order, suspending the issuance of immigrant visas,
that we have had applications for permanent residence approved and have had
clients receive their green cards. As such, there is confusion in this area,
and we hope it is resolved soon.
What are the exceptions, or who would be eligible to enter the U.S. in
one of the barred non- immigrant categories such as H-1B? Only those coming
to work in the U.S. in an area of the national interest. These include those
coming to work in roles to combat COVID-19, roles which are essential to
economic recovery or roles critical to national security. The order is silent
regarding family members of such individuals. Children who would turn 21 and
thereby lose visa eligibility are also excepted.
Who is excepted from the ban on issuance of immigrant visas? The
list is long but exceptions are primarily for those related to U.S. citizens,
permanent residents, or members of the armed services, or those seeking a visa
to enter the U.S. to work in an area in the country’s national interest.
Where can I get further updates? This is the latest information as of June 24, 2020. We will post new information to our website www.cyavisalaw.com.