On June 30, 2020 Presidential Proclamation 10052 was amended to clarify that individuals (and their dependents) outside of the United States are suspended from seeking entry as an H-1B, H-2B, J-1, or L-1, unless they had a valid H-1B, H-2B, J-1, or L-1 nonimmigrant visa on June 24, 2020 or are eligible for an exemption. For example, an individual outside the U.S. with a valid B-1 visa on the day of the proclamation would be barred from receiving an H-1B, H-2B, J-1, or L-1 visa until the end of the year.
June 22, 2020 Presidential Proclamation does not Bar Entry of Canadians in H, L, or J Status
On June 24, 2020, DHS confirmed that the H, L, and J entry ban announced on June 22, 2020 does not apply to Canadian citizens. However, the U.S./Canadian border restrictions remain in effect until July 22, 2020 and the U.S. Consular Offices in Canada remain closed. At this time, there has been no announcement regarding the reopening of routine visa services at the U.S. Consular Offices in Canada. Nor do we know whether the current U.S./Canadian border restrictions will be extended into August.
FAQ REGARDING PRESIDENTIAL PROCLAMATION ON IMMIGRATION, ISSUED JUNE 22, 2020
The information in this FAQ is general in nature and does constitute legal advice.
GENERAL
When does this proclamation take effect? June 24, 2020. Except the portion extending the suspension of immigrant visas which took effect June 22, 2020.
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.
I’m 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.
INDIVIDUALS OUTSIDE 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.
I 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.
EXCEPTIONS
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.
MORE INFORMATION
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.
H-1B Premium Processing Suspended in April
The H-1B visa allows U.S. companies to hire graduate-level works in certain specialized fields. The application process for this type of visa can take up to a few months, mainly because of how long it takes for USCIS to review the application. Until April 2017, USCIS offered a “premium processing” option, which expedited the review process. Through the expedited process, applicants could receive approvals within 15 days. In April, however, the Trump administration temporarily suspended premium processing for up to six months, in an effort to reduce the backlog of long-pending visa petitions.
Some argue that the suspension of the expedited process is having a negative effect on a number of industries that rely on foreign workers. In addition to creating practical inconveniences for tech companies and their potential employees, the suspension is also impacting the healthcare industry. In areas of the U.S. that have shortages of American physicians, the communities have started to rely on foreign-born physicians. When premium processing was still an option, foreign-born doctors at completing their residencies at U.S. institutions could receive a job offer, apply for an H-1B visa, finish their residency, and start working within a few weeks. Now, that process could take months, causing a delay that could negatively impact the people in those underserved communities.
Others argue that this suspension is necessary to clear up the backlog and is the first step towards more comprehensive reform to the H-1B visa program. They assert that the current lottery system is not adequately responding to the needs of the U.S. economy and it results in American workers being replaced by foreign visa holders. To respond to these concerns, several bills have been introduced in recent months to reform the H-1B visa system.
In the coming months, the H-1B program may continue to experience changes. We will update you as to any major developments here on our blog.
TRUMP EXPECTED TO ISSUE NEW EXECUTIVE ORDER NEXT WEEK
In a news conference held Thursday, President Trump announced that rather than continue fighting for the reinstatement of his controversial executive order on visas and refugees, he will instead start from scratch and issue an entirely new executive order on the matter. President Trump expects to release the new order next week.
In its supplemental brief to the Ninth Circuit filed Thursday, the Justice Department confirmed Trump’s announcement, stating that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” The Department filed that brief in response to Chief Judge Thomas’s call for a vote considering whether the three-judge panel’s ruling blocking Trump’s original travel ban should be reviewed by the full Court. The Department further stated that though the injunction “readily meets the normal standards for rehearing,” the government “respectfully submits that the most appropriate course would be for the Court to hold its consideration of the [pending] case until the President issues the new Order and then vacate the panel’s preliminary decision.”
Both the President and the Department of Justice have stated that the new executive order will obviate the constitutional concerns articulated by the Ninth Circuit in its appraisal of the original order, though the Executive’s maintains that the Court’s ruling was “seriously flawed.” Whether the legal battles over the President’s immigration reform are over however, largely depends on the contents of his new order.
January 27th Executive Order Regarding Immigration
On Friday, January 27, 2017, President Trump signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The following provides information on the key provisions of this order and any clarifications and updates that are known to date:
· The order bans entry for 90 days (from January 27, 2017) of immigrants and non-immigrants from the following countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. (The following visas are exempt from this order: A, G, NATO, C-2 and C-3). All embassies and consular posts have been instructed to immediately suspend the issuance of non-immigrant and immigrant visas for nationals of those countries. Other countries may be added to the list in the future.
o Department of Homeland Security (DHS) has clarified that the order applies to anyone who holds a passport from a designated country, including dual citizens who hold passports from a designated country as well as a non-designated country.
o Legal Permanent Residents (LPR) may be admitted on a case-by-case basis following security review. DHS has deemed entry of LPRs to be in the national interest and absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, LPR status will be a dispositive factor in case-by –case determinations.
· The order suspends the U.S. Refugee Admissions Program for 120 days. However, there may be exceptions made on a case-by-case basis, based on whether it is in the national interest, the person poses a risk to the U.S., the person is a religious minority facing religious persecution or the admission of the person is required to conform U.S. conduct to an international agreement, or the person faces hardship when already in transit.
o The order suspends indefinitely the admission of Syrian refugees and reduces the number of refugees allowed to be admitted to the U.S. in 2017 to 50,000.
· The order further provides for additional security protocols as well as requires that the U.S. consular officers interview everyone who applies for a non-immigrant visa.
On January 28, 2017, the U.S. District Court for the Eastern District of New York in Darweesh v. Trump, signed an emergency order prohibiting the removal of individuals with refugee applications approved by USCIS as part of the U.S. Refugee Admissions program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the U.S. This emergency order applies to all noncitizens who are detained at U.S. airports because of this January 27, 2017 executive order and will remain in effect until a full hearing is held.
Stern & Curray strongly condemns the President’s executive orders and maintains they are discriminatory and unconstitutional. We will continue to keep clients and the public apprised of any developments in the immigration laws.
President Trump Signs Series of Executive Orders on Immigration
In a series of executive orders announced on Wednesday, President Trump took the initial steps to significantly revise U.S. immigration policy from that of the Obama Administration. The executive orders call for a number of changes to various immigration programs, including DHS’s immigration enforcement priorities, the U.S. Refugee Admissions Program, visa issuances from specific countries, and the much-talked-about border wall.
Some of the announced changes include the following:
- A revised list of immigration enforcement priorities that includes, among other categories, individuals charged with “any criminal offense,” even where the individual has not yet been convicted.
- An increase in the number of immigrant detention centers and federal border patrol agents.
- A dramatic decrease in the number of refugees admitted annually under the U.S. Refugee Admissions Program from 110,000 to 50,000.
- A 120-day freeze on all refugee admissions, followed by a resumption of admissions only from countries determined to have sufficient safeguards to “ensure the security and welfare of the United States.”
- A 30-day freeze on admissions of immigrants or nonimmigrants from countries designated as “areas of particular concern,” namely Iraq, Syria, Iran, Libya, Somalia and Yemen, followed by a potential indefinite suspension of admissions from these countries.
- Construction of a contiguous, physical wall along the US/Mexico.
Although some of these proposed actions – such as the border wall, detention centers and increased number of border agents – will require Congress to allocate funding before they can be implemented, many of the actions will likely go into effect immediately.