Analysis

Unclear Scope Of Trump's Work Visa Ban Makes Travel Iffy

By Suzanne Monyak
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Law360 (June 30, 2020, 7:36 PM EDT) -- The White House broadened its freeze on work visas for applicants abroad in an update Monday night, but attorneys say the ban's language continues to confuse visa holders in the U.S. who worry future travel may jeopardize their immigration status.

Exactly a week after handing down the visa-freeze order, which bars many foreign workers from moving to the U.S. on new H-1B, L-1, H-2B and J-1 visas through the end of 2020, the Trump administration slightly expanded the scope of the proclamation in an amendment to its language.

Under the original order, foreigners who already had a valid visa and individuals already in the U.S. were exempt from the ban, which the administration said was intended to aid Americans who lost their jobs because of the coronavirus pandemic.

Monday's update clarifies that individuals won't be exempted from the ban based on having valid visas from other categories, barring people abroad who have student or visitor visas, for example, from moving to the U.S. on a new H-1B or other suspended work visa this year.

But attorneys say that the broader confusion spurred by the proclamation remains unaddressed: namely, whether individuals in the U.S. on the proclamation's effective date, June 24, could become subject to the ban if they travel internationally this year.

"I feel like I'm screaming into a void," Fiona McEntee, managing attorney at immigration firm McEntee Law Group in Chicago, told Law360. "This is a bigger thing."

It's unclear how many people Monday's update might affect, as many foreign citizens could possess visitor visas, which can remain valid for up to 10 years.

According to Greg Siskind, a founding partner of immigration firm Siskind Susser PC, the update could pose a new hurdle in particular for foreign executives who wished to transfer to their company's U.S. branch, since they could likely have a visitor visa from previous business trips to the U.S.

The new language would also block an individual who attended a university in the U.S. and still has a valid student visa, but who left for a family home abroad when the coronavirus pandemic struck, from returning to the U.S. on one of the types of work visas that has been suspended, McEntee said.

But if the proclamation is applied to visa holders working in the U.S. who, for instance, leave the country to renew their visa stamps once consulates reopen or travel home for the holidays, the impact on American businesses could be much broader.

"If someone has a job that they're doing now, that they were hired for, that they were in, to not let them come back to continue doing it makes absolutely no sense," said Susan Cohen, chair of Mintz Levin Cohn Ferris Glovsky and Popeo PC's immigration practice.

Much of the confusion over the proclamation stems from a series of tweets published by the U.S. Department of State responding to individuals' questions. Immigration lawyers say those tweets conflict with what's actually written in the proclamation.

Several individuals who said they were in the U.S. with valid visas asked if they could leave to renew their stamps at a consulate while the proclamation is in effect and be permitted to return under the order's terms.

While individuals in the U.S. may extend their work authorization through U.S. Citizenship and Immigration Services without issue, foreigners must have a valid visa stamp, issued by the State Department, to enter the U.S. from abroad.

"Visa holders already legally in the U.S. do not need to renew their visa to remain. If you depart the U.S., you will need a valid visa to return," the department wrote in a tweet. Another account followed up, asking if an individual who leaves the U.S. in a month could renew the stamp and return.

"If you depart the US, you will need a valid visa to return and we will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31 unless an exception applies," the State Department account wrote back.

Attorneys with the American Immigration Lawyers Association promptly tore in, stressing that the plain language of the proclamation states that the suspension only applies to an individual who is outside the U.S. on the proclamation's effective date.

"Based on the text, if an individual is in the US with a valid visa on the effective date of the Proclamation, they should not be subject to the ban even if they leave to renew their visa before 12/31. Can you confirm?" wrote Shev Dalal-Dheini, AILA's director of government relations.

"To confirm - you're now saying that if someone who was in the US on the effective date leaves, they then become subject to the ban?" McEntee, an AILA chair, added in her own tweet.

When contacted by Law360, a State Department spokesperson deferred to the White House, which did not return a request for comment or clarification Tuesday.

McEntee told Law360 that the State Department's apparent expansion of the proclamation is "mind-boggling."

"To me, that's very, very scary this type of expansion is happening," she said, adding that the discrepancy could bolster a future legal challenge to the proclamation. "They don't have the authority to expand an arguably already unlawful travel ban."

The lack of clarity and conflicting guidance has prompted many immigration lawyers to advise clients that foreign employees should remain in the U.S. to be safe.

"This is indeed the question that requires clarity," Andrew Greenfield, managing partner of Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C., office, told Law360. "Unless and until we get clarity from the government on this, we are strongly cautioning clients against international travel if they will need to obtain a visa while abroad."

The proclamation's language has put the employer community in a "tailspin," Dalal-Dheini of AILA told Law360, while also causing dismay for visa holders caught outside the U.S. when borders closed.

"You don't know how to advise clients," she said. "It creates chaos. It creates uncertainty and panic for those individuals who are stuck abroad now."

Cohen said she has clients who want to be able to send their visa-holding executives on international business trips as countries reopen, but she too is advising against overseas travel for those individuals.

"They were counting on them traveling because some countries are opening up for business meetings and important deals," she said. "It's really problematic."

The confusion also makes it harder for U.S. companies to make business decisions, Cohen said.

"It inhibits business when government policy isn't clear. Period. End of story," she said.

--Editing by Aaron Pelc and Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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