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Additional Executive Order May Affect Entry of Nonimmigrant Visa Holders

It is expected that the president will issue an expansion of the executive order he signed in April (“Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market during the Economic Recovery Following the COVID-19 Outbreak”), which was issued for an initial 60-day period with potential to be renewed. While the initial order was limited to overseas applicants for immigrant visas (i.e., green cards), it is likely that the renewal of the order will expand its application to nonimmigrant employment-based visa holders, such as H-1B, H-2B, L-1, and J-1 visa holders. However, similar to the April proclamation, it is expected that the new order would bar entry only to individuals in affected visas classes who are physically outside the U.S. at the time the order becomes effective. Exemptions are likely to be made for employees in essential industries, such as healthcare and supply chain workers.

The proclamation will likely be issued by the end of the month, but could be announced as early as June 15. The effective period of the proclamation could also be longer than the previous order, possibly 90 to 180 days.

It is not expected that individuals within the U.S. will have their valid visa status or work authorization affected by the new order. It is also not expected that pending applications for immigration benefits with USCIS or DOL (I-129 petitions, I-539 applications, I-765 applications, LCAs, PERMs, I-140 petitions, I-485 applications, etc.) would be immediately affected by the order. This is because the basis for the existing proclamation (section 212(f) of the Immigration & Nationality Act) is the president’s authority on restricting entry into the United States.

There may, however, be proposed changes to regulations related to H-1B, H-4 EAD, and STEM OPT issued later this summer that would affect individuals in the U.S. in these classifications. Regulatory changes for these programs have been long expected, but a new proclamation may change or shorten the process that these proposals normally undergo.

At this time, it is advised that nonimmigrant visa holders who are currently outside the U.S. consider traveling into the U.S. as soon as possible, prior to issuance of an expanded order, if health and safety allow and if they hold a valid visa stamp. This is because the order will likely go into effect relatively soon after the official announcement from the administration, as was the case with the April and May orders which took effect within days of their release.

By: Rebecca Chen

Rebecca is a partner and senior practice manager at Reddy & Neumann and represents clients in employment-based nonimmigrant and immigrant visa cases. She advises clients throughout the visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates.