Tuesday, June 23, 2020

TRUMP ISSUES WIDE RANGING EXECUTIVE ORDER BANNING NEW LEGAL EMPLOYMENT BASED IMMIGRANTS UNTIL 2021


Last night, President Trump updated and expanded his April Presidential Proclamation that had banned legal immigrant visas for 60 days.  Last night’s ban extends the April legal immigration ban through December 31, 2020 and adds many temporary employment-based nonimmigrant visas, including H-1Bs, L-1s, J-1s, and H-2Bs. 

It seems certain that the President will be sued and so any information contained here is subject to the outcome of the lawsuits.

The ban effects many types of employment-based immigration, such as:

Green Cards (Immigrant visas) Consular Processing

All Consular Processing green cards continue to be banned, as they have been since April.  There are a few exceptions:
  • Permanent Residents of the US;
  • Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);
  • Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date).
  • Spouses and children of US Citizens;
  • EB-5 investors;
  • Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;
  • Special Immigrants in the SI or SQ Class and their family members; and
  • Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

Green Cards (Immigrant visas) Adjustment of Status

No effect whatsoever.  Many Adjustment of Status interviews, of course, have been delayed because of COVID-19, although we have seen that the USCIS is approving some employment based green cards without an actual visa interview.

H-1B, L-1, J-1, and H-2B visas

  • Beneficiaries approved for H-1B and L-1s will not be allowed to enter the US unless they currently have a valid visa stamp, even if they have an approved I-797.
  • H-1B and L-1 visa stamps cannot be granted at embassies or consulates unless the H-1B or L-1 is for one of the exemption categories below. 
  • If you have an H-1B or L-1 approval and you are in the US, you should not travel outside the US unless you already have a valid H-1B visa stamp in your passport and you intend to return to the US prior to the expiration of that visa stamp.
  • H-1B and L-1 amendments, extensions, and transfers continue to be permissible.
  • H-1B cap petitions that are based on a change of status (e.g. F-1 to H-1B) should be approved with a new I-94 card for the H-1B status.  The ban does not prohibit or effect the change of status, however, individuals changing status to H-1B should not leave the US after October 1 as they will not be able to return without a valid H-1B visa stamp.  
  • Similar prohibitions apply to J-1 and H-2B visas, although the J-1 visa ban is limited to interns, trainees, teachers, camp counselors, au pairs, and summer work programs.  Other J-1s may obtain visas and enter the US.
  • The ban also applies to the H-4, L-2, J-2 dependent classifications.  Spouses and children in the US as dependents should not travel abroad unless each family member has a valid visa stamp in their passport.  Dependents who are currently abroad will not be allowed to enter the US unless they currently have a valid visa stamp.

Exemptions to the H-1B, L-1, J-1, and H-2B nonimmigrant visa ban

The visa ban does not apply to:
  • any lawful permanent resident of the United States;
  • any alien who is the spouse or child of a United States citizen;
  • any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  • any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

National Interest Entry Requests

The Proclamation allows for exemptions to the nonimmigrant visa ban if the Beneficiary is one of several categories deemed by DOS or DHS to be “in the national interest”.  It is expected that the DOS and DHS will issue details about these exemptions and the process to request an exemption.  The Proclamation’s named categories include those who:
  • are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;
  • are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • are children who would age out of eligibility for a visa as a result of the visa ban.

39 comments:

  1. Does children over 21 years old included in the ban atty. ? Thank you

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    Replies
    1. Over 21 year olds must qualify for their own visa. You should talk to an attorney.

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  2. Hi atty, just to confirm EB3 (PH) nurses waiting for PD are exempted from the suspension? Thank you

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  3. Is retrogression possible with this proclamation?

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    1. Retrogression will continue.

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    2. So we can now expect that August VB will not progress or a possible retro to align with the proclamation.

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    3. No - one has nothing to do with the other.

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  4. Does this mean that the visas that are left for the rest of 2020 fiscal year will be readily available for nurses hence the possibility of eb3 category for ROW to become current for august visa bulletin?

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    Replies
    1. Not necessarily. I do suspect that the ROW will progress.

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  5. Good day. Will sons and daughters of permanent residents under F2B immigrants visas affected?

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    Replies
    1. What if the applicant is a child of a US
      CITIZEN under F2B?

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    2. This comment has been removed by the author.

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    3. All family based consular process immigrant visas are banned except for the ones outlined in the blog post.

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    4. My question is a bit confusing since the applicant is a child of a US citizen(the Petitioner which is the father is currently residing in the US) but she is under F2B immigrant visa.

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    5. Confusing questions should be directed to your attorney.

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  6. Are Physical Therapists included on the ban exemptions? I think they are limiting even for the medical workers.

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    Replies
    1. No - PTs are banned unless they are working on COVID relief.

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    2. Does this apply if PTs are under an eb3 visa?

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    3. PT EB3s are currently exempted under the April ban.

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  7. Hello sir,
    Does this mean the whole process (including visa interview) will stop or only the issuance of greencard will stop?
    We are going through EB3 Visa Process.
    Thank you very much.

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    Replies
    1. I would need more information about your case. You should ask your lawyer.

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  8. Good day Atty. Are family based petitions such as F1, F2A and F2B affected by this ban as well? Thank you in advance

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    Replies
    1. All family based consular process immigrant visas are banned except for the ones outlined in the blog post.

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  9. Are nurses under EB3 affected by this new proclamation?

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  10. Hi, i am a PT, eb3, PD is june 2019. Am i affected with the proclamation? Thanks

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    Replies
    1. To understand how you are effected, you should discuss your specific case with your petitioner and/or attorney.

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  11. good day atty! if hwra will be a law, what month it will be enacted? for example aug 1 it will pass,do the congress will a lot 2 or 3 months? my concerned is embassy will open july 31 ,im just concerned on the 20000.i hope others use vb visa not hwra,because a lot of nurses are current but cannot get visa because embassy is closed.i hope you get my point.

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    Replies
    1. Do not be concerned about the 25,000 visas. There will be plenty of visas if HWRA becomes law.

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  12. What happens to Medical Technologists who were selected in the lottery and are on h1b processing? Are they included in the ban exemption?

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    Replies
    1. Unfortunately they are banned unless they can prove work with COVID patients.

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  13. Hi atty. I dont work in a COVID ward but Im an ER nurse and mostly we are the ones who is in the very frontline of COVID positive and or suspected COVID patients before anyone else in the hospital. Do i have a good chance that my Visa will be expidited? Im alreay current in this Aug.VB. Thanks

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