On Monday, June 22, 2020, President Trump issued an Executive Order (EO) effective June 24, 2020 suspending entry into the United States of foreign nationals on certain nonimmigrant employment-based visas until December 31, 2020. The suspension applies to those outside of the US who do not have a valid visa or advance parole travel document for entry into the US. It carves out some exceptions for those involved in providing medical treatment for and research in COVID-19 as well as national interest grounds. FSVS is closely monitoring the EO’s implementation and new developments. Most of our faculty and staff will not be impacted by this EO. For those that may, FSVS will review alternative visa options with hiring units. Students, faculty, staff, and new hires already in the US are able to continue their immigration processing without change. The following FAQ addresses many of the questions raised by the EO.
When does this go into effect?
June 24, 2020.
What does it do?
Suspends entry into the United States of certain H-1B, H-2B, H-4, J-1 and L visa categories until December 31, 2020 with possibility of extension at the discretion of the President.
Who does it effect at USC?
Applicants outside of the United States applying for H-1B or H-4 visas and certain J visas (intern, trainee, teacher, camp counselor, au pair, or summer work travel program or their spouse or children—generally not applicable to USC).
Who does it not effect?
- H-1B employees in the US seeking an extension of status (EOS) or change of employer to USC (COE);
- Employees in the US applying to change status (COS) to H-1B from another category such F-1 OPT or J-1 (this includes potential new hires who are in the US);
- H-1B employees outside of the US who are in possession of an unexpired H-1B visa stamp, advance parole travel document, or boarding foil letter;
- H-1B employees seeking to join USC under a change of employer (COE) petition and in the US or, have valid visa stamps/advance parole travel documents.
- Nonimmigrant O-1s, TNs, and E-3s whether in the US or outside the US, whether they have unexpired visas or not;
- Lawful Permanent Residents (green card holders) and US Citizens;
- The spouse or child of a US citizen; and
- Possibly does not apply to visa exempt H-1B nationalities (Canadians); nor H-1B1 Chilean and Singaporean nationals. The EO specifically identifies the applicable categories and does not explicitly state H-1B1s are included. Additionally, most Canadian citizens are exempt from the visa requirement and do not require visas for entry into the US. The EO explicitly states the ban applies to H-1B visa applicants. Since most Canadians do not require H-1B visas, the EO should not apply to them. It remains to be seen how CBP will interpret the EO.
Are there exceptions?
Yes, there are exceptions for H-1B employees who are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States. There are also waivers for individuals who are critical to the defense, law enforcement, diplomacy, or national security of the US. Hiring units should provide FSVS with comprehensive documentation of an H-1B visa applicant’s involvement in COVID 19 research or medical care or involvement in critical national interest work.
What is considered work necessary to facilitate the immediate and continued economic recover of the United States?
The EO does not define this and instructs the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security to establish standards to define categories of who qualifies under this exception.
Can hiring units file new H-1B petitions at this time or are we limited to H-1Bs until December 31, 2020?
Departments can still recruit and petition for new H-1Bs. There is no ban on petitioning new hires. New hires in the US who will require either a change of status or change of employer may still be filed without limitation. Hiring units can also petition for those outside of the US in anticipation of the lifting of the suspension of entry.
Are there any alternative visa categories that hiring units can apply for to sponsor faculty and staff outside of the US?
There are a number of visa categories unaffected by the EO. Canadian and Mexican citizens may be eligible for the TN category. Australian citizens may also qualify for the E-3 category. Additionally, the H-1B1 category may still be available for Chilean and Singaporean nationals. Faculty and staff who are preeminent in their field may also qualify for the O-1 category for foreign nationals of extraordinary ability. Some positions and activities may also qualify for J-1 visas. Requests to explore alternative categories should be directed to FSVS through the hiring unit’s designated admin. The J-1 options will also need to be explored with the Officer of International Services (OIS). Faculty and staff should contact their immediate supervisors and coordinate with their admins to request FSVS review of possible alternatives.
I have family members outside of the US who I am concerned about who I want to visit. Can I visit them this summer?
We understand the difficulty of being separated from family and loved ones especially during a global pandemic. However, unless you have a valid visa stamp or advance parole travel document to enter the US, you will not be able to return to the US until the EO is rescinded. While the EO is set to expire on December 31, 2020, the President may continue to extend it indefinitely as he has with prior travel bans. Additionally, the President’s EOs are becoming more and more restrictive. There is a possibility that a future EO may be issued prohibiting all entry, even for those with a valid visa or advance parole travel document. These risks must be weighed before departing the US.
Are there any additional provisions?
Yes, the Secretary of Homeland Security is instructed to take necessary steps to deny work eligibility for those who have been arrested for, charged with, or convicted of a criminal offense in the US. This would apply to any new petitions to extend or change status.
Are there any changes to H-1B eligibility or sponsorship for permanent residency?
The EO instructs the Secretary of Labor, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of foreign workers who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, under an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers. There is no timeline for when these new regulations will be issued nor what they will entail. USC is closely monitoring the situation and will join in legal challenges to enjoin restrictive regulations that will affect our faculty and staff’s ability to continue working at USC.
We understand the alarm and concern the continuing Executive Orders are causing to our community. Most of our faculty and staff will not be impacted by this most recent EO. For those who are, FSVS will work closely with our admins and legal counsel to find suitable alternatives where possible. US travel and immigration policies are likely to continue to change as part of the global COVID-19 response. FSVS and the University’s senior leadership continue to closely monitor the immigration policies and advocate on behalf of our foreign national faculty and staff.