On June 22, 2020, U.S. President Donald J. Trump passed an executive order titled, Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak popularly known as the Visa Ban or Travel Ban. U.S. economy has contracted significantly because of the Covid-19 pandemic, resulting in mass lay offs across the United States. President Trump’s Executive Order restricts the entry of foreign workers on non-immigrant work visas such as H1-B visa, L1 visa and J1 visa to save American jobs and promote hiring of American workers. He also extended proclamation 10014 popularly known as the Immigration Ban. Immigration ban suspended issuance of immigrant visas or green cards to certain categories of prospective immigrants. Proclamation 10014 was passed on April 22, 2020 and was valid for 60 days. By this executive order it is extended till the end of the year.
The impact of this executive order is widespread. From Startups to Fortune 500 Companies all rely on foreign workers who move to the United States on non-immigrant visas such as H1-B and L1-A and L1-B. Each year 85,000 H1-B visas are granted and L1 visa does not have a cap. Timing of the pandemic and resulting executive order could not have been worse since the H1-B visa lottery takes place in April and foreign workers who are outside the United States are expected to join their prospective employers in the United States in the beginning of October. Fortunately, the executive order does not impact existing H1-B, L1 and J1 visa holders. It also does not impact workers on Optional Practical Training (OPT) work authorization that is granted to international students who complete graduate or undergraduate degree courses in the United States. Companies of all sizes including Fortune 500 companies expecting new foreign talent to join their workforce beginning of October will have to devise a contingency plan to absorb talent remotely or hire talent from within the United States. Industry experts expect litigation in the near future challenging President Trump’s Executive Order.
The Executive Order has impacted a lot of foreign workers. Some foreign workers would have quit their current jobs overseas or have given notice of termination to their existing employers and are now unsure whether they can make it to the United States, or their job offer with the United States employer stands. In some cases H1-B visa holders are in the United States whereas their Spouse and children may be overseas awaiting H4 visa stamp, these spouses and children can try to enter the United States on a visitor visa, but they cannot study or work in the United States because of restrictions on visitor visas. Same is true for families where L1 Visa holders have moved to the United States and their qualifying dependents are awaiting L2 visa stamping. Also, for people with pending immigrant petition getting a visitor visa is very difficult because of immigrant intent.
There is a lot of confusion around regarding who is impacted by this order. Please see the table below addressing some of the circumstances:
Existing H1-B, H4, L1-A, L1-B, J1 visas and OPT work authorizations are not impacted by this executive order at all.
The Executive Order does not impact Student Visa, Visitor Visa applications.
USCIS will continue to process all petitions.
|H1-B visa aspirants within the United States with a valid I-797 and I-94||H1-B visa aspirants outside the United States who have an approval but have not yet gotten a H1-B visa stamp|
|H1-B visa aspirants who are overseas and have already gotten an H1-B visa stamped|
|H4 visa holders outside of the United States with a valid stamp||H4 visa aspirants outside the United States without a H4 visa stamp|
|H4 visa aspirants within the United States with a valid I-797 and I-94|
|L1 visa aspirants within the United States with a valid I-797 and I-94||L1 visa aspirants outside the United States who have an approval but have not yet gotten a L1 visa stamp|
|L1 visa aspirants who are overseas and have already gotten an H1-B visa stamped|
|H2-B visa aspirants within the United States with a valid approval and I-94||H2-B visa aspirants outside the United States who have an approval but have not yet gotten a H2-B visa stamp|
|H2B visa aspirants who are overseas and have already gotten an H1-B visa stamped|
|J1 Visa aspirants within the United States with a valid approval||J1 visa aspirants outside the United States who are approved but do not have J1 visa stamped on their passport.|
|J1 visa aspirants who are overseas and have already gotten a J1 visa stamped|
While there is no restriction on travel in or out of the United States for valid visa holders, people should be cautious about traveling outside the United States. There is a possibility that incoming travelers from certain countries may face delays or ban from entering the United States owing to the Covid-19 outbreak. Further, this ban on entry if extended for too long may result in people losing their jobs.
Panic among non-immigrant workers and certain categories of prospective immigrants, has caused a visible surge in the EB-5 visa queries. The EB-5 Visa industry had suffered setbacks because of the increase in the minimum investment amount from $500,000 to $900,000 for Targeted Employment Areas in November 2019 and because of global economic recession caused by the Covid-19 pandemic. Increasing uncertainty has caused lot of H1-B workers who have an endless wait on EB-2 and EB-3 category to explore EB-5 Visa. Entrepreneurs on L1 Visa who hoped to get EB1-C Green Card are also looking at EB-5 to attain their permanent residence. There is also a lot of interest among the international students who wish to study and work in the United States.
E2 Treaty Trader Visa is also not impacted by these executive orders and may become popular for some people looking to open a business in the United States. However, it is a difficult option for students who wish to study and join a company as a professional. Also, E-2 is a work visa and lasts only till the business is active. Also, there is a fear of cancellation of treaty by the United States with the country of citizenship of E2 visa applicants which recently happened with Iran in January 2020. In order to remain in the United States, E2 visa applicants will eventually have to attain permanent residence either under family based or employment based Green Card categories.
President Trump’s Executive Order is intended to enable American Workers get back to work and in line with his America First ideology. However, it does have a lot of negative consequences on Companies including Fortune 500 Companies and foreign workers. Only time will tell whether the intended positive impact outweigh the negative impact of the Executive Order.
Abhinav is the Director of South Asia & the Middle East at CanAm Investor Services. CanAm Investor Services is an affiliate broker dealer of CanAm Enterprises, LP one of the oldest EB-5 Regional Center owner and operator. He has been part of the EB-5 Visa Industry since 2013. Abhinav is a dual qualified attorney licensed to practice law in the State of New York and the Republic of India. Abhinav is also a Series 7 and Series 63 licensed finance professional. Prior to joining CanAm, Abhinav was a Partner at an EB-5 law firm headquartered in New York where he headed the firms India and Middle East practice.