FREQUENTLY ASKED QUESTIONS
Nonimmigrant Visa Suspension FAQs
On June 22, 2020, Trump Administration released a Presidential Proclamation temporarily suspending new H-1B, H-2B, L-1 and J-1 visa applicants from entering the U.S. The key points of the Proclamation are summarized here. We are providing the below FAQs to help our clients understand the impact of the Proclamation.
Impact by Status
Visa Processing & Entering the United States
1. I have been working in the U.S. in H-1B/L-1 status already, and traveled to my home country for a brief trip earlier this year to visit family and renew my visa, which has already expired. I was unable to return due to the suspension of visa services at all U.S. consulates. Will I be able to apply for an H-1B/L-1 visa when the consulates resume visa processing, being that I have been working in the United States for several years?
Unfortunately, the Proclamation, as written, does not provide an exception for people who have been living and working in the U.S., and who got stuck outside the U.S. due to the COVID-19 situation. We are hopeful that it will be modified by the time the consulates reopen to accommodate people in this situation.
2. I am in H-1B status and have a valid H-1B visa in my passport, but the visa stamp lists a previous employer. Can I still enter the United States using this visa?
Yes. You do not need to update the visa stamp in your passport to reflect your current employer. You should present your valid H-1B visa stamp, your Form I-797, H-1B Approval Notice with your current employer, and recent pay statements with your current employer.
3. I am outside the country, and my H-1B/L-1/J-1 visa application has been stuck in “administrative processing.” What will happen to my visa application once the Proclamation is lifted?
At this time, it is unclear what will happen to visa applications submitted prior to the U.S. Embassy/Consulates closing due to COVID-19 and the issuance of this Proclamation. The decision will ultimately be up to the individual consular post, and no information has been offered on how applications will be addressed. It is possible that the consulate will cancel pending applications and have the applicants reapply, particularly if your application has now been pending for several months or longer.
4. My H-1B/L-1/J-1 visa application status was changed to “refused” when the U.S. Embassies/Consulates closed. Does that mean my application was denied?
No. This status update was likely simply an internal mechanism used by consular posts to permit visa applicants to have their passports returned to them while consular posts were closed. Certain posts elected to return all passports to visa applicants upon closing, while other posts left it up to the individual applicant to request their passport back until consular operations resumed.
5. I do not have a valid H-1B/L-1/J-1 visa, but I was able to book a future visa appointment for 1-2+ months from now, before the Proclamation took effect. Should I reschedule or cancel my appointment?
We recommend waiting until closer to your appointment date before canceling. It is possible that further exceptions will be carved out for the Proclamation, an injunction blocks the Proclamation, or other critical changes to the Proclamation’s implementation may arise. Once your appointment date approaches, even if no updates have arisen, we will likely have a better understanding of how consulates will be handling the Proclamation.
6. I have been working in H-1B status, and also have an adjustment of status (I-485) application that is pending. I am outside the U.S. and my visa is expired, but I have a valid advance parole document. Will I be subject?
No. Persons with valid travel documents, such as advance parole documents, will be allowed to reenter.
7. Same facts as above, but my spouse is a lawful permanent resident (LPR) and not a citizen. Will I be subject?
Yes. Unlike the travel bans, there is no exception for spouses of LPRs.
8. Same facts as above but my child was born in the U.S., and my wife is not a U.S. citizen. Will I be subject?
Yes. Unlike the travel bans, there is no exception for parents of U.S. citizens.
9. I have been working in H-1B status, am currently outside the U.S., and my visa is expired. My spouse is a U.S. citizen. Will I be subject to the suspension?
No. Spouses of U.S. Citizens are exempt from the suspension but still needs valid visa/travel document to enter
10. If I am in H-1B, L-1 or J-1 status, can I go to Mexico or Canada for up to 30 days with an expired visa, pursuant to the automatic visa revalidation rule?
This is not clear in the proclamation, but we recommend against, until the DHS offers further official clarification.
Impact on H-1B Extensions
11. I am in the United States in valid H-1B status, but my approval notice is expiring. Can I still file an extension petition with the USCIS?
Yes. The Proclamation does not prevent persons in the United States from extending their status through a petition with the USCIS.
12. My employer filed an H-1B extension petition for me, which was approved, but my online I-94 is still expiring or has expired. Will my online I-94 record update automatically?
No. Your online I-94 from the CBP website is an admission record that is only updated when you reenter the country. Your Form I-797, H-1B approval notice has a paper I-94 at the bottom that serves as your new I-94.
Impact on L-1 Blanket Extensions
13. I am in L-1 blanket status and normally extend my status by applying for a new L-1 visa at a U.S. Embassy/Consulate. How can I extend my status if I am unable to depart the country?
Your status can be extended by filing an L-1 petition with the USCIS.
Impact on H-1B1 Visa Applications
14. I am from Singapore and am planning to apply for an H-1B1 visa as soon as the consulates resume visa services. Will I be subject to the suspension?
We do not think that you will be subject because the proclamation says that it applies to H-1B, but not specifically H-1B1. However, this could be interpreted differently by the consulate or CBP officer. We do not recommend you travel until we hear further clarification.
Impact on H-1B Cap Lottery Candidates
15. My employer filed an H-1B cap petition on my behalf this year, and it was filed requesting an automatic change of status. Does this suspension apply to me?
No. So long as you do not depart the country, the Proclamation will not impact your status automatically changing to H-1B on October 1st, or upon approval of the petition, whichever is later.
16. My employer filed an H-1B cap petition on my behalf this year, and it was filed requesting consular processing. Can I convert the petition to a change of status, so I do not have to depart the country?
It may be possible to change your H-1B cap petition from consular notification to change or status. Please contact our office to discuss your specific case.
Impact on Canadian Citizens
17. I am a Canadian citizen who is in Canada, and have an H-1B approval notice but no visa stamp. Am I subject to the suspension?
This is also not specifically addressed in the Proclamation, but CBP clarified that Canadians are visa exempt.
Entering in B-1/B-2 Visitor Status
18. If I enter the U.S. using a visa status not covered by the Proclamation, e.g., B-2 visitor status, can I change status to H-1B, L-1 or J-1 status once I am here?
We recommend not doing this. You should not enter in B-2 or other non-work authorized status with the intention of changing to a work authorized status once here. Your change of status will likely be denied.
19. My H-1B/L-1 visa stamp in my passport is expired, but I have a valid B-2 visa stamp. If I need to travel to the United States for an emergency, can I use that to enter the country?
It may be possible to enter the US for an emergency using a valid B-1/B-2 visa in this scenario. However, there is some risk that you may be denied entry to the US, if the CBP officer at the port of entry believes that you are seeking entry in B-1/B-2 status in order to circumvent the proclamation. We strongly recommend not doing this except in case of extreme emergency, and that you contact our office ahead of time so that we may advise on any recent policy changes by the DHS. Note that your US employer may not pay you on your US payroll while you are in the US in B-1/B-2 status.
20. What if I show them documentation supporting the short-term nature of the trip in the form of a return flight ticket, or hotel stay?
You can do so, but it is still possible that the offer will deny you admission. This decision is ultimately up to the discretion of the individual officer, and is also impacted by other factors, such as the airport you fly into.
Impact on Dependents
21. I just entered the U.S. on a valid H-1B, and my spouse is still outside the country, and has yet to apply for a visa. When the consulates resume visa processing, will she be able to apply for a H-4 dependent visa and enter the country to join me?
The suspension applies to dependents, including those who are “following to join” the principal applicant.
22. I am stuck outside of the United States, but my family members are in the United States in dependent status, and their I-94 expiration date is approaching. What action can I take to extend their status(es) in the United States?
We encourage you to contact our office, as this depends on your individual situation.
23. My spouse is in H-4 status in the United States and is applying for an H-4 EAD. Does this Proclamation impact her ability to apply for work authorization?
No. The Proclamation does not impact H-4 EAD applications, assuming your dependent is in the United States in valid status, and meets the other eligibility requirements for H-4 work authorization.
24. Can my dependents visit me using a valid B-1/B-2 visa, since they cannot apply for an H-4/L-2 visa?
It may be possible to enter the United States for an emergency using a valid B-1/B-2 visa in this scenario. However, there is some risk that you may be denied entry to the United States, if the CBP officer at the port of entry believes that your dependents are seeking entry in B-1/B-2 status in order to circumvent the proclamation. We strongly recommend not doing this except in case of extreme emergency, and that you contact our office ahead of time so that we may advise on any recent policy changes by the DHS.
Green Card Processing
25. Does the Proclamation impact green card processing (PERM, I-140, I-485)?
There is no direct or immediate impact on the PERM or green card process. The proclamation instructs relevant government agencies to review these processes and consider proposing new regulations or new policies to better protect US workers. However, no specific changes have been proposed at this time, and we believe that it is unlikely that the instruction will lead to any substantive changes in the near future. The process of issuing new regulations generally takes at least several months.
26. I am in the United States in H-1B/L-1 status, and I have a valid H-1B/L-1 visa stamp. I am also in the middle of my PERM/I-140/I-485 process for my green card. If I depart the country, will the Proclamation impact the progress of my green card?
Departing the US will generally not impact an ongoing green card process. However, if you are in the final stage of the process – the I-485 -- we strongly recommend contact our office before leaving the country.
Working Remotely Abroad
27. I am stuck outside the country. Is it permissible for me to work for my employer abroad?
U.S. immigration law does not restrict H-1B or L-1 workers from working for the sponsoring U.S. employer outside the country. However, there may be other legal or company policy considerations that should be discussed with your internal HR and/or legal team.
28. I am working remotely for my employer from my home country. Do I need to notify the USCIS?
No. It is not necessary to notify the USCIS if you are working abroad.
29. I have been stuck outside the country due to COVID-19, and I am now unable to return to the United States for the rest of the calendar year due to the Proclamation. Will my extended time outside of the United States have a future impact on my U.S. immigration status?
No, it will not.
30. I am in F-1, TN, O-1, E-3, or another nonimmigrant status not mentioned in the Proclamation. Does the suspension apply to me?
No. The suspension only applies to individuals seeking to enter the United States in H-1B, H-2A, L-1, and J-1 nonimmigrant status.