24/06/2020 4:12 PM IST

Trump’s Visa Restrictions On H1B, H2B, L Visas Explained

Poorvi Chothani, managing partner at global immigration law firm LawQuest, explains the impact of the order on different categories of visa holders.

US President Donald Trump has temporarily suspended entry into the United States for some categories of foreign workers till the end of this year.

On Monday, US President Donald Trump  temporarily suspended entry into the United States for some categories of foreign workers till the end of this year. Indians, who account for 75% of H-1B petitions and over 90% for the H4 visa, will be the worst affected by the new order. 

The suspension, which takes effect on June 24, 2020, was undertaken to help America’ coronavirus-affected economy and reduce unemployment, according to the proclamation signed by Trump. The country will hold its presidential election later this year.

ALSO READ: Indian H-1B Visa Holders In US Face Layoffs As Coronavirus Topples Economy

While the visa suspension announcement has led to panic among Indians in the country, experts say there is a lot that still needs to be clarified.

“This proclamation is like bare bones and you still need to add the meat on it. There is no clarity as to who an economic contributor is or when will visa processes start because this proclamation is not clear about the visa processes at all,” said Poorvi Chothani, managing partner at LawQuest, a global immigration law firm. “There is also a catch with the exempted visas regarding the issuance and travel because India is still under a lockdown.”

Chothani also explained in an interview what the impact of the freeze will be on different categories of visa holders.

Which visa categories have been suspended?

The June proclamation on visa suspension affects the H-1B, H-4, H-2B, L-1, L-2, J-1 and J-2 visa categories. However, the entire J programme is not impacted. J-1 visa holders who are not interns, trainees, teachers, camp counselors, au pairs, or in a summer work travel programme will not be affected.

As a result, healthcare workers or trainee doctors with J visas are exempt from this ban. The proclamation also exempts those whose entry into the US would be in the “national interest” of the country. This includes those contributing to the national security or defence of America, individuals who will provide essential, temporary labour to the US food supply chain and people who are necessary for the economic recovery of the country.

Does this impact foreign workers with a valid US visa?

Workers with a valid visa or those who are in valid status in the United States will not be impacted by this entry freeze.

When will the visa freeze kick in?

While the effective date of the entry ban is June 24, 2020, at 12:01 AM, the visa issuance cutoff date is June 22, 2020. Individuals who have valid visas issued on or prior to June 22, 2020 can travel to the U.S., even if they are otherwise subject to the ban.

I am in India to get my visa stamped. Will they still issue my visa? 

This is an entry ban that prevents the entry of foreign nationals under several visa categories but there is no mention of visa issuance. I don’t think they are going to issue visas until the end of December. Additionally, the Indian government has not opened up the country fully, so the US Embassy and Consulates have not yet started visa processing.

I am on an H-1B and I recently lost my job due to the COVID-19 pandemic. How will this affect my status? 

As long as your new employer has filed the H-1B transfer petition with the USCIS within the 60-day grace period from the date of your termination, there will be no problem. In such transfer cases the approval notice is generally issued with a subjoined I-94 that extends your status and allows you to legally remain in the country. However, if the transfer is filed after the 60-day grace period, then it is at the discretion of the USCIS whether to grant an approval with an extension allowing one to remain in the country or mandate that the person has to leave the country and get a new visa because the petition was filed beyond the grace period.

Thus, there are three scenarios: a new employment petition filed within 60 days would have no problem; a new employment petition filed after the 60-day grace period but the USCIS grants an extension within the country – this also is fine as it allows you to continue in the US; lastly, the petition is approved but you have to go back to get the visa. Those who have to get a visa would need to leave after the petition is approved and could get stuck outside at least until December 31, 2020.

I am based in the US and my visa status is about to expire, what should I do? 

If your status is about to expire and you continue to have a job, it is important that your employer files an extension petition before the expiry. If you are past the 60-day period for H-1B or 90-day period for OPT, ask your company or attorney to file the application request for a nunc pro tunc decision, i.e. asking for adjudication with retrospective effect. The USCIS has discretionary powers to do this in exceptional circumstances and COVID-19, in my opinion, would be considered an exceptional circumstance.

I was picked for this year’s H-1B CAP. Will I still be able to get the visa? 

There are broadly two types of people selected for the H-1B cap. First, the ones that are in the United States on some other visa status like students on F-1 OPTs or L-1s or TNs.  All those trying to convert to H-1B, as long as they are within the United States, will be fine because when they get approved, they generally receive an I-94 which allows them to legally stay in the United States. However, if they have left the country or do so now, they will need a visa to get back and that is where the ban could affect them.

 The second group is of foreign nationals living outside the United States, who have been selected in the H-1B CAP.  These individuals definitely cannot start working on October 1, 2020, which is the earliest employment start date for CAP H-1Bs.  The entry ban is in place until the end of December but there is no mention of when the consulates will begin visa processing.  But if they were to do so in December or January, then H-1B CAP candidates could travel in January at the earliest.  However, if they only start issuing visas after December 31, 2020 there would be further delays. 

All those trying to convert to H-1B, as long as they are within the United States, will be fine because when they get approved, they generally receive an I-94 which allows them to legally stay in the United States.

Will this affect me as an international student on F1?

The visa suspension proclamation has not made any changes to OPT, CPT or the F-1 programmes. The OPT programme is something that attracts students to America and universities earn a lot of revenue from foreign students. They may have lobbied hard to make sure that foreign students are not affected.

We anticipate that when the consulates open in India, they will first handle a large volume of student visas, provided that the students want to still join US universities and attend remote classes at least for the near future. Nevertheless, F-1 students on OPT or CPT awaiting a change of status to H-1B should refrain from travelling outside the U.S. (even if their EAD has been issued, which is not a travel document), because if they leave they most likely will need a valid, appropriate visa to return to the country. 

If I have an H4 through my marriage, how will this affect me?

The proclamation blocks family members who would accompany workers on visas that are subject to the ban. Whatever happens to the H-1B holder is likely to happen to the dependent spouse and children.

If I am married to an American citizen or a green card holder, does this affect me? 

The entry ban does not apply to spouses and children of American citizens. While the green card holders are exempted from this ban, their children and spouses are not.

How will this impact L visa holders ? 

If there are people who have L-1 or L-2 visas and they are outside the United States, they can travel to America. If you don’t have an L-1 visa yet, you are not likely to get a visa even if you qualify as an L-1 worker and have an approved petition.  Also, your visa had to have been valid on June 22 and any visa issued subsequently will not allow for travel.