Trump Blocks Visas for H-1B Skilled Workers, Many Other Temporary Visa Holders

Both would-be green card holders and temporary workers and scholars and their family members are affected by Trump's latest restrictions on U.S. entry.

The Trump administration’s latest immigration restriction came via an Executive Order that was issued after business hours on June 22, 2020. It expands and extends the April 22, 2020 Executive Order to December 31, 2020.

This latest immigration ban does two things. First, it continues the ban on green cards that was set to expire June 23, 2020. Second, it now bans entry by people on several types of work visas. The April 22 ban alluded to the second part on work visas and since has been a snake lurking in the grass.

The first part stops the entry of certain new immigrants as permanent residents. It also contains a provision calling for suggested modifications from the Secretaries of Homeland Security and Labor within 30 days and at 60-day intervals thereafter. It’s not clear what those suggestions could be.

The second part bans certain persons outside the U.S. from entering the U.S. with work visas. The affected visa categories are H-1B, H-2B, J-1s (only for interns, trainees, teachers, camp counselors, au pairs, and summer work-travel program participants), and L-1. The ban includes dependent family members, namely people on H-4, J-2, and L-2 visas.

The following summarizes how this immigrant ban could affect various individuals.

Part 1: Immigrants Who Are Affected

The ban applies to anyone who is outside the U.S. and is waiting for the U.S. consulate or embassy to issue an immigrant visa (green card) for travel to the United States to take up residency here. An example is someone who traveled to his or her home country to complete the green card process at the U.S. embassy there. If the embassy has not put the visa stamp in the passport, the person cannot travel to the U.S. as an immigrant.

This means waiting until both the ban has passed, and the embassy or consulate has resumed operations. If he or she has a valid nonimmigrant visa, such as an H-1B visa, he or she still could return to the U.S. now, subject of course to any other travel ban in place now, and complete the green card process at a later date.

Part I: Immigrants Who Are Not Affected

The ban does not apply to the following persons:

  • Lawful permanent residents, which means someone who either entered the U.S. previously with an immigrant visa or adjusted status while in the United States.
  • Certain healthcare or research workers engaged in COVID-19 efforts;
  • EB-5 investors.
  • Spouses and children under age 21 of U.S. citizens, and children to be adopted.
  • Certain law enforcement-related persons.
  • Members of the U.S. Armed Forces and their spouses and children.
  • Special Immigrants (such as for service to U.S. military operations).
  • Any person whose entry is deemed to be in the U.S. national interest.
  • Persons seeking asylum, and
  • Persons in the United States who have applied to adjust status and are waiting for U.S. Citizenship and Immigration Services (USCIS) to approve their green cards. (The order specifically limits the scope of the ban to persons who are not in the United States.)

Part 2: Nonimmigrants Who Are Affected

The work visa ban applies to persons who are outside the United States on June 24, 2020, do not have a currently valid visa stamp in their passport, and do not have another document that would authorize entry to the United States, such as a transportation or boarding letter or advance parole.

The affected visa categories are:

  • H-1B – specialty occupation workers.
  • H-2B – temporary, non-agricultural workers.
  • J-1 - interns, trainees, teachers, camp counselors, au pairs, and summer work-travel program participants.
  • L-1 – L-1A managers and executives and L-1B specialized knowledge workers being transferred from an overseas operation to work at an affiliated organization in the United States, and
  • H-4, J-2, and L-2 dependent family members – spouses and children under age 21.

Part 2: Nonimmigrants Who Are Not Affected

The ban on work visas does not apply to the following persons:

  • Lawful permanent residents.
  • Spouses and children under age 21 of U.S. citizens.
  • Any person who will provide temporary labor or services essential to the U.S. food supply chain.
  • Any person deemed to be in the national interest, e.g. critical to defense, law enforcement, diplomacy, or national security, COVID-19-related work, or economic recovery efforts.
  • Persons who already are in the United States pursuant to a work visa and whose employers are extending their status for continued employment. For example, H-1B and L-1 workers whose employers need to extend their status for them to remain in the U.S. are not affected by this Immigration Ban 2.0. Dependent family members in the U.S. also are not affected.

The Executive Order further contains a call for additional action. It instructs the Secretaries of Labor and Homeland Security to consider new regulations or other measures directed at H-1B workers and those applying for green cards under the employment-based second and third preference categories (EB-2 and EB-3).

Ostensibly to protect U.S. workers, Ban 2.0 specifically references the labor certification step of the green card process (a labor market test to ensure there is not a qualified U.S. worker) and the Labor Condition Application component of the H-1B visa program (provisions relating to wages and employment conditions).

Two other provisions prohibit work authorization for persons who currently are in or could be subject to deportation proceedings, and for persons who have been arrested for, charged with, or convicted of a criminal offense.

The two immigration bans rely on an overlooked provision in the Immigration and Nationality Act, which gives the President broad authority for this sort of drastic measure: “Whenever the President finds that the entry of any aliens [an outdated term for persons who are not citizens] or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Effective Date: June 22, 2020

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