President Trump has signed an executive order suspending the issuance of new temporary work visas for individuals outside of the U.S. in several employment-based visa categories through the end of 2020 that will be effective on June 24th. This executive order applies broadly to individuals outside of the U.S. who do not currently hold a valid work visa or travel document, with limited exceptions. The proclamation does not impact foreign national employees who currently hold visa stamps or documents, and those who are in the United States as of June 24th. The executive order also extends the current travel ban on green card applicants outside of the U.S. until December 31, 2020. 

This executive order was issued in response to the high unemployment rate as a result of the coronavirus pandemic. According to senior White House officials, this freeze will allow U.S. workers to apply for 525,000 jobs that would have otherwise been held by foreign nationals. This new executive order is a more comprehensive limitation on visa issuance following President Trump's April 22nd executive order, where he had ordered a 60-day freeze on several categories of family and employment-based immigrant visa categories. Today's order is set to be reviewed by the Secretary of Labor and Secretary of Homeland Security in 60 days, at which point any recommendations or modifications may be made as necessary. 

Immediate Impacts of Visa Restriction

As of June 24th at 12:01 AM EST, the following nonimmigrants who are outside of the U.S. without a valid visa stamp or U.S. travel document will be restricted from entering the country: 

  • H-1B and H-4 visa categories. H-1B visas are issued to individuals who will be employed in specialty occupations that require at least a Bachelor's degree or its equivalent, and are widely used by companies in the technology sector in the U.S. H-4 visas are issued to spouses and children of H-1B visa holders.
  • L-1A and L-1B visa categories, which includes intracompany transferees holding managerial, executive, or specialized knowledge positions. 
  • “J” cultural exchange visas, including foreign camp counselors and other short term workers. However, there is an exception for au pairs, foreign medical graduates in residency or fellowship programs, research scholars and university professors, who will still be able to apply for these visas. 
  • Dependents (spouses and children) of these visa categories who are currently outside the U.S. 

Exemptions for Trump's Immigration Order

The executive order carves out several exceptions for various visa categories and special circumstances, including the following: 

  • Individuals who are in the U.S. as of June 24th at 12:01 AM EST. This includes individuals who are applying in the U.S. for an extension or amendment of their current visa status, as well as FY 2021 H-1B cap applicants currently in the U.S.;
  • Foreign nationals who are outside of the U.S. on the effective date of the proclamation and who hold valid visas, advance parole, or U.S. travel documents ;
  • Individuals on the H-2A agricultural program;
  • Spouse or child of a U.S. citizen;
  • J-1 visa holders (other than trainees, teachers, camp counselors, au pairs, and summer work travel participants);
  • Individuals seeking to provide temporary labor or services essential to the United States food supply chain; and
  • Lawful permanent residents. 

The executive order also allows for discretionary waivers of these restrictions for foreign nationals whose work is deemed to be in the national interest, including those involved in COVID-19 research and healthcare work or who are necessary to facilitate the immediate and continued economic recovery of the United States. These waivers will be decided on a case-by-case basis.

The Executive Order did not discuss whether there would be any impact on Canadian nationals who are seeking entry in these categories, and we expect there will be further clarification in the coming days. 

Implications for Employers

This executive order limits an organization's ability to bring new foreign national employees to the U.S. through legal immigration channels until the end of December 2020. Employers will have to revisit start dates and timelines for foreign national employees that planned on coming under these visa categories, as it is likely they will be unable to enter the U.S. until at least the end of the year.

Although there are no specific restrictions for foreign nationals currently in the U.S., the proclamation includes language requiring the Department of Homeland Security and Labor to review regulations and develop potential guidelines for H-1B nonimmigrant and EB-2, and EB-3 immigrant visa holders. This may potentially restrict an employer's ability to extend H-1B visas in the future, and may include more-stringent requirements for the EB-2 and EB-3 visa categories. 

In addition to the above, there are still significant travel restrictions in place as a result of a COVID-19, even for foreign nationals who are exempt from this executive order. As such, we recommend that you reach out to your Pryor Cashman representative prior to any international travel in order to ensure you receive the most up-to-date guidance.   

Next Steps

It is expected that additional clarification to the executive order will be provided by the government over the next few days.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.