Jun 26, 2020
Executive Order Update – Department of State Advises it Will NOT Issue Immigrant and Nonimmigrant Visas through December 31, 2020
Joshua H. Rolf and Jonathan A. Grode
- Changes now in effect.
- Unless subject to an exception, U.S. Department of State will not issue new or renewed nonimmigrant visas in the effected classes until December 31, 2020.
- Likewise, suspension of immigrant visa issuance also extended through December 31, 2020.
- No timeline on resumption of routine, in-person visa services.
Yesterday, we provided an update on how Customs and Border Protection (“CBP”) will treat individuals with presently valid visas and those who are visa exempt in light of the newest Executive Order that went into effect yesterday. In this vein, since Tuesday the U.S. Department of State’s Consular Affairs Twitter feed has addressed Frequently Asked Questions regarding the Order’s impact on its operations. Additionally, the feed also fielded questions from users. Some key takeaways from this ongoing conversation are:
- Subject to select exceptions, the Department of State will not issue a new or renewedH-B, H-2B, H-4, J-1, J-2, L-1, or L-2 visa through December 31, 2020 – even if they were physically present in the United States on June 24, or if they had any valid nonimmigrant visa as of that date.
- In the case of an H-4, J-2, or L-2 spouse/child, that will be the case even if their H-1B, H-2B, J-1, or L-1 spouse or parent has a valid visa and/or is physically present in the United States.
- The immigrant visa suspension will continue through the end of the year, including for Diversity Visa Applicants.
- J-1 Physicians are exempt by definition, but H-1B or L-1 Physicians must apply for/be deemed to qualify for an exemption.
- There is no clear timeline for the resumption of routine, in-person visa services.
The first point is quite troubling, and arguably, contrary to the plain reading of the Executive Order. Specifically, Section 3 of the Executive Order’s use of the conjunctive “and”indicates that all three criteria must be present in order for someone to fall under its purview. Under this interpretation, an individual who is physically present in the United States on June 24, but who later departs the United States, would not be subject to the Order (see first criterion); and the same goes for someone who has a valid nonimmigrant visa on June 24, even if it expires thereafter (see second criterion). Unfortunately, it is clear that the U.S. Department of State will not implement the Order as it is written; and therefore, willNOT issue an H-1B, H-2B, J-1, or L-1 (or H-4, J-2, or L-2) Visa for someoneapplying between now and December 31, unless, if they fall under one of the exceptions. That this interpretation could also contribute to families being separated throughout the duration of his Executive Order is equally unsettling. Each of these issues, amongst others, could give rise to litigation that could press “pause” on the Order while it gets worked out in the courts.
We will continue to monitor agency-specific guidance as it is published (which we hope will be the case and that we will not have to rely on a Twitter Q&A),and will provide all updates via our Firm’s E-Alerts and Blog. As always, please do not hesitate to reach out if you have any questions as to how the Order impacts your situation.