Latest Trump executive order on H-1B, L-1 and J visas: who will be affected?

By Nandini Nair

(Editor’s note: The transcript has been edited for clarity.)

Prominent immigration attorney Nandini Nair, a Partner at Greenspoon Marder LLP, discusses the impact of the new executive order issued by President Trump on Monday.

It’s finally out — after days and days of guess work, negotiations and lobbying, the administration issued an executive order, or presidential proclamation on Monday on work visas.

So what does it exactly say?

Here is just the real basics of this, and I’ll go into a little bit more detail in a minute: The basics is that the administration is barring entry into the United States certain work visa individuals, who are outside the United States, as of June 22, from coming into the United States, if they do not have a visa issued in their passport, if they do not have an advance parole, if they do not have some sort of transportation letter allowing them to enter the United States.

What are the visa categories that are impacted by this?

These are the H-1s, the L-1s and the J-1s and their accompanying dependents: H4s, L2s and J2s. That’s really important to understand that it’s just not only for the principals but it is also going to be for the dependents.

So what if you do have a visa issued on your passport?

The way it has been listed in the executive order it looks like anyone who actually has the physical visa issued on their passport that remains valid for the classification that they are trying to enter for. They are going to be exempt from this ban.

What about individuals who have an expired visa, and currently they have not been able to get a new visa issued because the consulates are closed? Will they also be counted against the exemptions?

We don’t yet know. We are waiting for some detailed guidance on this because those are individuals who have been in the United States, happen to leave the country, go on vacation, be stuck due to the Covid-19 pandemic. The consulates are closed and may be their appointments were rescheduled, and they’re just waiting it out. Will these individuals be impacted?

At this moment we don’t have enough information and details to determine whether they are also banned from reentry. We are hoping they are not because they have been here in the United States. They’re probably still working, maybe probably remotely, and they should not be necessarily subject to this. But we don’t, again, have enough guidance at this point. We also don’t have guidance if families are separated, whether the principal is still here on an H in the United States working, maybe the dependents have travel abroad and they were unable to get their visas issued because the consulates are closed. Will they be also banned from coming back?

Again, the way it’s reading it looks like it, but again we have to wait for the agency to come out with more details on it. A lot of these proclamations are written in very general terms and the practicalities have to come at a later time. So we still need to wait this out. It definitely does mean that individuals who never had visas issued are going to be barred from coming into the the United States, at least, till December 31, 2020. So that we are absolutely sure of.

In regard to L-1s, I’ve been asked questions, “Well, does it mean all L-1s because L-1s are separated into two different categories As and Bs. The reading is it’s all Ls, which we are very surprised about because we were expecting an exemption for the L-1 As, who usually are the CEOs, executives and managers. So we thought that they would at least get an exemption.

What about the Js?

The Js are separated into seasonal work, summer work, trainees, and even teachers — and we have a shortage of teachers in the United States. But they’re also part of this ban. Now again, we’re waiting to see if somebody who was here as a teacher, maybe last year, and is coming back when the school reopens. And they don’t have a visa issued on their passport but obviously they were here in the United States previously. Will they be subject to this ban? Does it impact individuals who are here in the United States?

On the face of it, no it doesn’t. However, does it mean that you would be able to travel? And, let’s say, you have an expired visa, get a new visa issued on your passport? That again is something that we need to wait out. At this time, I would tell anybody who’s in the United States on a work visa not to travel. First of all, consulates are not open. A lot of countries’ borders still remain closed. The spike in Covid-19 is high in a lot of countries. So it is prudent to stay in the United States and not travel at this point.

However, if there is a situation that requires you have to travel, will you be able to come back in, if you have an expired visa?

Again, we don’t have those final details yet. We should hopefully have them shortly, and I’ll let you know if anything changes in that regard.

What about F1s? What about E3s?

Right now, there is no impact on any of those categories. So if you’re a student coming in or coming back, starting school, starting university in the fall, right now, there is no impact. You should be able to come in, if you have a visa. Now the question a lot of people are asking is, well, what does it matter? The consulates are closed anyway. And that’s true. That’s exactly right. What does it matter anyway? Because you’re not able to get a visa appointment, you’re not able to get the stamp anyway.

And what is the expectation when these consulates will open?

Right now, we don’t know. Again, we believe that consulates are going to open probably country by country, depending on where the spikes are, where the hot spots are. Most of the people who are watching these videos are from India and I get a lot of questions from Indian nationals asking when are the consulates opening India.

I don’t think it’s going to open anytime soon. Maybe in October. It might even push out because the spikes are so high in India right now. So this visa entry ban may have a null effect anyway because the consulates are not open at this time. But the other part is it does prevent people from traveling who are already here in the United States, and, in some ways, keep some almost like a prisoner here because they they’re scared, or they have an expired visa and they don’t know whether they will be able to go to the consulate and be able to re-enter even if the consulates were open. So these are things that have to be considered.

I think there’re a lot of details yet to come. I know that there are a lot and lots of negotiations going on in regard to revamping the H-1B program, such as adding excessive fees to it, changing how certain definitions of the program have been going on. There are definitely many conversations going about revising the STEM OPT program, if not eliminating the STEM OPT program, and taking away the H4 EAD program. So there’re multiple things that are coming down. We are anticipating some rulemaking in July and hopefully there will be a lot of negotiations, a lot of comments against elimination of these programs that will hopefully make the administration think twice about chopping them all off. These are things that are still coming. It does not mean this is the end of it — it’s not. I definitely believe that until November we are going to continue to see these things come forward. We are going to hear about other bans, possibly revamping a lot of programs that have been in existence for decades. But until we have more information what you need to know today is that the entry ban goes into effect 12:01 a.m. June 24. It is banning entry of H-1s and their dependents, L-1s and their dependents, Js and their dependents, entering to the United States until December 31, 2020, if they are outside the United States, if they do not have a visa issued on their passport, if they do not have a travel document to re-enter the United States.

At this time, we again do not have enough information to know whether it will affect anyone who previously had a visa and just needs to go and get a new stamp on their passports. As soon as I get any more information, I’m definitely going to come out and let you all know about that. Until then, stay put. Don’t travel, if you don’t have to. Wait on the guidance to come out before you’re making any further decisions.

(Nandini Nair is a Partner at Greenspoon Marder LLP.)


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