President Trump’s most recent Executive Order extends the current restrictions on Green Cards issued abroad and expands the restrictions to include some nonimmigrant visa types including H-1B, H-4, H-2B, J-1, L-1, and L-2. These restrictions will be in place until December 31, 2020.

As we are currently at the end of the FY 2021 Cap season, many clients have been reaching out to us asking how these restrictions affect them. Importantly, the Executive Order only limits the issuance of new H-1B visas at the consulate. It does not affect anyone applying within the U.S.

For the new FY 2021 Cap H-1B petitions, the change of status applications are not affected at all. Anyone applying for consular processing will not be able to attend stamping with the H-1B approval until January, instead of October. To be clear, we can still file the application with USCIS requesting consular processing and USCIS will still approve these cases – the approvals will just not be able to be used to attend stamping at the consulate until the restrictions are lifted. ILBSG notes that cap case approvals do not begin until October 1, 2020 anyway (and many H-1B petitions are not approved by that time due to lengthy processing times), so this should not be a substantial delay.

For H-1B extension petitions, we advise that you file them as early as possible so that if there is a denial notice, you can refile in the U.S. before the I-94 expires. If a case is denied after I-94 expiration and the beneficiary does not already hold a valid, unexpired visa, they will not be able to refile in consular processing and then step out and attend stamping with the approval in order to return and reinstate their status. Therefore, ILBSG encourages all clients to treat extension and amendment + extension cases with great care – you should not wait until the last minute to file extension petitions to avoid this scenario and we recommend premium processing whenever possible.

If someone already holds a valid, unexpired H-1B visa, they can still travel with it and they are unaffected by the amended Executive Order. However, ILBSG encourages all clients to consult with an attorney before traveling outside the U.S. for any reason and to take the current restrictions under consideration when making travel plans.

Finally, the Executive Order mentions that new regulations may be issued to ensure the EB-2, EB-2, and H-1B nonimmigrants do not disadvantage U.S. Workers. While there has been speculation about what changes may be coming to the H-1B program (new LCA requirements, changes to the lottery system, etc.), ILBSG encourages clients not to panic and emphasizes that these changes are not coming immediately and must still go through the regulatory process. Any future changes being considered do not affect the current FY 2021 cap cases.

As always, ILBSG is here for its clients and will be ready to navigate any new changes in immigration law to ensure our clients’ continued success.  ILBSG will keep its clients posted of any new developments.

h h-1b j visa l visa president proclamation Travel trump