President Trump issued a Presidential Proclamation stop the issuance of H-1B, L-1, J-1, and H-2B and dependent visa stamps at Embassies until December 31, 2020. For a detailed analysis of the visa of the Proclamation and the visa classifications impacted, please review our previous blog post.
On our June 30, 2020 webinar we reviewed several situations in which visa holders may now find themselves due to the Proclamation. Below is an FAQ to help employers and employees navigate travel and visa issues under the Proclamation.
Q: My employee is in the US on an H-1B right now. The employee does not have a valid visa stamp in her passport. Can the employee leave the US?
A: NO – H-1B workers who are in the US and do not have a valid visa stamp should not travel outside the US. Without a valid visa stamp, the worker will not be allowed back into the US.
Q: I have a valid visa stamp in my passport. Can I travel overseas?
A: YES – Those who are in the US and have a valid visa stamp can travel abroad, provided they return to the US before the expiration of their visa stamp.
Q: My employee is overseas and had an appointment at the Embassy to get a visa stamp in July 2020. Will my employee be able to return to the US?
A: NO – Visa stamps in the effected categories will not be issued until after January 1, 2021, or perhaps later.
Q: My employee’s spouse and child are outside the US for their regular summer visit to their home country. The spoues and child were able to visit the Embassy in May and obtain new visa stamps. Will my employee’s spouse and child be able to return to the US?
A: YES - The spouse and child can enter the US if they have valid visa stamps in their passports.
Q: My employee is abroad right now and does not have a valid H-1B visa stamp in his passport. However, he does have a valid B1/B2 tourist visa stamp in his passport, can he travel to the US on his B1/B2 stamp?
A: MAYBE - but this is not recommended. The employee cannot work in tourist status so a change of status to H-1B would have to be filed once the employee enters the US. The employee cannot return to work until this change of status is approved by the USCIS.
Q: My employee currently holds a green card. She is outside the US and plans to return in July 2020. Can she return on her green card?
A: YES – the April Proclamation exempts US Legal Permanent Residents from the ban.
Q: My company has filed a green card case for our future employee who is a nurse. We are a staffing company and do not yet know at which of our client sites the nurse will be assigned to work. Can the nurse enter the US?
A: MAYBE – Under current interpretation, the nurse may enter the US on a green card for any reason. Later this summer, the Trump Administration may narrow the ban and require nurses to be treating patients who are currently hospitalized with Covid-19.
Q: My employee is currently in the US working for my company on OPT as an F-1 student. My company has filed an H-1B for this employee which was selected in the H-1B lottery and is currently in process with the USCIS. Will the H-1B be impacted by the ban?
A: NO – because this is a change of status from F-1 to H-1B, the employee will not be impacted. However, the employee should not travel outside the US, as he will not be able to get an H-1B visa stamp and return.
Q: My employee is in the US on an H-1B and has no plans to travel. Can I sponsor this employee for a green card?
A: YES – the there is no prohibition against filing green card cases from inside the US. Employees can still “adjust status.”
Q: My employee holds an H-1B that will expire later this year. Can I file an extension of the employee’s H-1B status?
A: YES – the there is no prohibition against filing for an extension, amendment, or transfer of an H-1B.