Trump Amendment to Immigration Executive Order Impacting L1 and H1B Visa Holders: New Guidance on which Visa Types you Must Hold
On June 29, 2020, the Trump Administration updated the June 22, 2020, Immigration Executive Order, providing additional detail to one of the three requirements for an individual to be subject to the immigration ban on entry for targeting H1B Visa holders as well as L1, J1, and H2B Visa holders. This amendment unfortunately seems directly aimed at removing an argument that we were hoping to be able to use in helping clients reduce the impact of the Order. The change directly narrows the Visa type that a person must have held on June 24, 2020, in order to avoid falling under the ban on entry.
It is however very important to note what was not changed in the Immigration Executive Order, that being the fact that a person still had to have been outside of the U.S. on June 24, 2020, to fall under the order. Let’s take a look at these two critical points.
Disclaimer: This post discusses possible arguments to hold the government to the text of the Immigration Order. Note that this is not legal advice. Also, the practical implementation of the Order is still unclear. Nobody should make any decisions or leave the U.S. without consulting with immigration counsel and getting legal advice on their situation and the risks involved.
The Immigration Executive Order Now Requires that a Person Must Have Held an H1B, L1, J1, or H2B visa on June 24, 2020, and Not Just any Visa Type to be Exempted from the Order
This is the language of the amended Section 3 of the Trump Immigration Order, which lays out the three requirements that one must satisfy to be subject to any bars to entering the U.S. on an H1B, L1, J1, or H2B Visa. We leave in and cross out the prior language for reference:
Sec. 3. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:
(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
[amended to read] (ii) does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and
(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
As was discussed in our article focused on another argument for reducing the impact of Section 3, it is important to note that there is an "and" joining all three of the above requirements together. So this indicates through a plain reading, that an individual must satisfy every one of the three criteria to be subject to the suspension and limitation on entry.
The plain reading before the change required that a person who held a visa, any type of visa, on June 24, 2020, would not be subject to the Order at all. This rather sloppy writing (whether intentional or not) of the Executive Order could have been argued to mean that even if a person held a B-2 visitor visa for example, that they would not have been subject to any part of the immigration ban advanced by the Order.
To clarify, the visa types that the new section references when it states “any of the classifications specified in section 2” this includes the listing of H1B, L1, J1, and H2B. The section in its entirety also includes the related dependent visa types such as the H4 and L2 as it stated:
The entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas is hereby suspended and limited, subject to section 3 of this proclamation:
(a) an H-1B or H-2B visa, and any alien accompanying or following to join such alien;
(b) a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien; and
(c) an L visa, and any alien accompanying or following to join such alien.
So given this amendment, it appears that the very open language provided in Section 3(ii), which essentially allowed anyone with any valid visa type held on June 24, 2020, to escape the Immigration Order. As a result of this quick change of course it is clear that the Trump administration erred in the language they included and is in fact seeking to block entry as much as possible.
That said, there is still one area of intrigue that could reduce the burden of this immigration ban.
What if I was inside the U.S. on the effective date of June 24, 2020, per the Immigration Executive Order?
It still appears, in our opinion, that if a person was inside of the U.S., in any status and with or without a particular visa type that they should be exempt from the Immigration Order. It is critically important not only to consider what changed in this latest Trump amendment to the Immigration Executive Order but also what was not changed. As can be seen, Section 3(i) was left untouched. Again, this section provides that one of the three requirements for a person to fall under the immigration ban as an H1B, L1, J1, or H2B is that the person:
(i) is outside the United States on the effective date of this proclamation;
As we discuss in detail in this post on this exact argument it still appears, as the Trump amendment to the Immigration Executive Order left this untouched.
So What Does Trump’s Amended Immigration Order Tell us as of June 30, 2020?
The result of this amendment to the Immigration Order is that to be exempt from the reach of the Proclamation one must have been holding a valid H1B visa, L1 Visa, J1 Visa, or H2B Visa on June 24, 2020, and this must be the visa status through which you want to now enter the U.S.
To be more precise, if this is the case the person would at least satisfy one of the three prongs that are required to fall subject to the Order.
Of course, one very critical element that is still left untouched in the Order is that anyone who was inside the U.S, arguably in any Visa status or even without Visa status, on June 24, 2020, will not be subject to the Order. Whether this will also be updated through a similar amendment is yet to be seen but as of now it still stands. Please note however that the Department of State through a set of Twitter FAQs has shown their disregard for this plain language, in particular through this tweet exchange on June 23, 2020:
Question: "if someone departs usa nxt month, will that person be issued a visa for coming back?"
DOS Answer: "If you depart the US, you will need a valid visa to return and we will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31 unless an exception applies."
This response from DOS indicates that there is already a deviation from the plain language of this requirement of the Order. So be aware that even if there is no amendment there is likely going to be a battle with DOS on this issue as people want to attempt to obtain new Visas and enter.
As always, we advise being very conservative in travel and speaking to trusted immigration counsel before making any decisions as these orders are unclear and as we have seen can change from one day to the next.
Read the White House version of the Amended Proclamation here.
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