Sanwar Ali: Donald Trump signs US work visa ban on H1Bs, etc

By Sanwar Ali:

The highly controversial executive order barring entry of migrants on the most important and popular non-immigrant work visas has definitely been signed by Donald Trump today (US time).  The effective date of the “work visa ban” is 12.01am on 24 June 2020, which is intended to continue until 31 December 2020. As widely reported it is wide ranging in scope and covers H1B visas, H2B visas, L1 visas and J1 visas and also includes the continuing suspension of employment based immigrant visas.  For many people, especially H2B visa and J1 visa applicants, it is just not practical to wait until 2021 to obtain a visa. Many would have expected to have gained entry to the US in 2020 on a relatively short term basis.  However, the Presidential elections are in November 2020 and it is very possible that the Democrats will win, and if so the ban may not be extended.  Joe Biden the Democrat candidate is currently doing much better than Trump.

No suspension on actually applying for US non-immigrant visa petitions

One bit of good news is that there appears to be no suspension on actually applying for non-immigrant visa petitions at the USCIS service center in the US.  Dealing with visa petitions can easily take months anyway.  Employers have to find the time to prepare in many cases hugely detailed visa petitions.  Then the inevitable Request for Further Evidence RFE is received.  On top of that due to coronavirus COVID-19 it could take months to receive a visa anyway.   Please note that in most cases there is a quota of 85,000 visas for H1B visa petitions.  In addition, there is a quota for H2B visa petitions.  There is no quota for L1 visas.  The delay will come when you wish to apply for an US visa based on the approved petition at the US Embassy or Consulate.

E2 visa alternative

Many nationalities come under the E2 Treaty Investor visa scheme.  The E2 visa and E1 visa scheme are linked to trade agreements between the US and various Countries around the World.  While Trump can make it more difficult and expensive to apply for E2 visas, he is probably unable to suspend processing of such applications, unless it is part of an overall suspension of visa processing due to say coronavirus COVID-19.  It should be noted that unless they can obtain another nationality Indian and Chinese nationals and certain other nationals cannot come under the E2 visa scheme.  The good news is that there is no quota under the E2 visa and E1 visa scheme.

O1 visa alternative

The O1 visa is limited to top people who have extraordinary ability or achievement.  There is the O1A visa for those with extraordinary ability or achievement in one of the following areas: science, education, business, or sports.  There is the O1B visa For people who have an extraordinary ability or achievement in the arts: music, theatre, film, and the like.   As the name suggested the number of people who can qualify under this visa category is limited.  Again, there is no quota.

As expected the categories covered in the work visa ban are as follows:

• H1B visa for Specialty Occupations – This is mainly for graduate level employees.  Many visa holders in this category are in IT occupations from India.  The ban includes spouses and dependents.
• H2B visa for temporary non-agricultural employment – This can cover almost any employment as long as it is not in the Agricultural field.   Again the ban includes spouses and dependents.
• L1 intra-company transfer visas for L1A managers and executives and L1B visa holders in specialty occupations.  There is no quota for this visa category. 
• J1 Exchange Visitor program.  The type of work covers intern, trainee, teacher, camp counselor, au pair, or summer work travel program. This includes anyone joining J1 visa holders.
• Suspension of Employment based immigrant visas continues.

No ban on OPT Optional Practical Training for F1 visa students:

There have been rumours circulating that the Optional Practical Training OPT program for F1 student visas would be suspended.  This did not happen.  However, due to very lengthy processing times many F1 visa students have been unable to take up OPT places.

You are exempt from the work visa ban in the following circumstances:

• Those that already have a non-immigrant visa on the date of the proclamation.  Unfortunately many people, including those with approved non-immigrant visa petitions do not have a visa.  The vast majority of people have been unable to obtain a visa at the US Embassy or Consulate since 20 March 2020.
• Those who are already Green Card holders for the US are not covered by the visa ban. 
• Immediate family members of US citizens.
• Those seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain.
• Those whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Linda Moore, the president and chief executive of the tech industry’s lobbying group, TechNet had the following to say:

“Looking forward, technology will continue to be crucial to the rebuilding of our economy. Today’s executive order only hinders the ability of businesses to make decisions on how best to deploy their existing workforce and hire new employees. This will slow innovation and undermine the work the technology industry is doing to help our country recover from unprecedented events.”

Donald Trump in his executive order had the following to say in justifying the work visa ban:

“The overall unemployment rate in the United States nearly quadrupled between February and May of 2020 — producing some of the most extreme unemployment ever recorded by the Bureau of Labor Statistics.  While the May rate of 13.3 percent reflects a marked decline from April, millions of Americans remain out of work.”

Workpermit.com can help with US employment-based visas

If you would like to apply for a US work visa – including L1 visas, E1 and E2 visas, O1 visas, and H1B visas - Workpermit.com can help. 

Workpermit.com is a specialist visa services business with over thirty years of experience dealing with visa applications. We can help with a wide range of visa applications to your country of choice. Contact us for further details.  You can also telephone 0344 991 9222.