The President Signs an Executive Order Banning Entry of Some Foreign Nationals Applying for Work Visas
On Monday, June 22, 2020, the president signed an Executive Order banning the entry of many foreign nationals hoping to apply for work visas abroad. The visa categories included in the Order are H-1B, L-1, and H-2B, as well as H-4 and L-2 visas for their spouses and dependents. Some J-1 visa holders are affected as well. The Order is effective through December 31, 2020 and has the ability to be continued by the president beyond that date.
The Order does not affect a foreign national who is:
- A green card holder;
- A spouse or child of a U.S. citizen;
- Already in the United States, even if awaiting a change of status to H-1B under the lottery;
- Already holding a valid U.S. visa, advance parole, or other travel document as of June 24, even if they do not enter until after the proclamation is in effect;
- A J-1 visitor, other than those coming as an intern, trainee, teacher, camp counselor, au pair, or summer work travel participant; or
- Coming to provide temporary labor or services essential to the U.S. food supply chain.
The key point in the Order is the word “entry”. This refers to physically entering the US from a foreign country at an airport, port, or border crossing (such as the Ambassador Bridge in Detroit, Michigan). In order for the Order to apply to a foreign national, the foreign national must be physically entering the U.S. Those already present in the U.S. are not included in the Order because they are not physically entering the U.S. It is also worth mentioning that the Order does not use the word “admission” interchangeably with the word “entry”, as “admission” adds the requirement that the foreign national be inspected and admitted by a border officer, which would likely have different legal implications.
How the Order affects foreign nationals relying on Cap Gap
There are many foreign nationals currently present in the U.S. in F-1 status with OPT who were selected in the most recent H-1B lottery and who plan to continue working in the U.S. via Cap Gap. As long as those foreign nationals were present in the U.S. on the date the Order was signed and continue to remain the US indefinitely, then they will not be affected by the Order. They will be allowed to continue working in the U.S. for the duration of their Cap Gap or until their H-1B is approved, whichever comes first. If an F-1 OPT student decides to travel abroad using a valid F-1 visa, then they may reenter the US using that visa. However, if they decide to travel abroad after they have converted to H-1B status (after October 1, 2021) and use their F-1 visa to reenter the US, their I-94 will reflect that they entered in F-1 status. As a result, they will need to convert to H-1B status by filing a petition through the USCIS when they reenter the US. If they decide to travel abroad while the Order is in effect, then they will be banned from entering the U.S., as they did not have a valid visa on the date the Order was signed.
How the Order interplays with U.S. Consulates abroad
At present, almost all U.S. Consulates abroad are closed and only issuing visas in emergency circumstances due to COVID 19. In reality, this Order will likely have minimal impact in the beginning months due to the fact that U.S. Consulates are not issuing H and L visas, regardless of the Order. The strain of the Order will certainly be more felt when all U.S. Consulates reopen, likely by October 2020.
Why doesn’t the Order ban TN and E visas?
The Order focuses on H and L visas, which are provided for in the Code of Federal Regulations (“CFR”) and codified by executive departments and agencies of the federal government. By contrast, TN and E visas are based on the existence of certain treaties, not in the CFR. Specifically, TN visas are provided for in NAFTA. As well, E visas exist as a benefit for citizens of countries that have treaties with the U.S. In order to ban either of these categories would be addressing treaty and international law instead of U.S. law, which is likely beyond the scope of what the president wants to tackle at this time.
Travel while the Order is in effect
Our firm will be recommending to all of our lawfully-present clients to stay put in the U.S. for the duration of the Order, else they risk the possibility of being stuck abroad. Though the Order is set to expire December 31, 2020, there is a strong possibility that the Order could be extended or modified, potentially keeping foreign nationals outside the U.S. much longer than anticipated.