On June 22, 2020, President Trump signed an Executive Order banning H1B and H4 visa holders from entry to the US until December 31, 2020. The ban extends to L1, L2 and J1 visa holders. The EB-5 visa category is exempt and not affected by this change. This order is an extension of Proclamation 10014 issued by Trump on April 22, 2020 which implemented a 60-day ban on issuance of new visas and green cards for certain visa categories and likewise barred entry for H1B and H4 visa holders. The stated purpose for the ban is to protect American workers who are facing one of the highest unemployment rates since the Great Depression from additional competition created by new immigrant employees. The ban does not apply to those already in the United States, and such visa holders may continue to seek transfers or extensions pertaining to their visa status.

The ban represents a continuation of a trend towards limiting the availability and benefits of H-1B and H-4 visas. See our blog regarding a prior proposal to end provision of work authorization for H-4 spouses. Notably, Section 5 of the Executive Order urges the Department of Homeland Security to promulgate new regulations or rules to ensure that the granting of EB-2, EB-3 and H-1B visas shall not disadvantage US workers. Little specificity is provided to describe the content of future regulations, but would likely impose stricter criteria for eligibility, give priority to higher wage earners and raise labor certification standards.

Like the original April 2020 order, the extended ban does not apply to EB-5 investors applying for or entering the US on an immigrant visa. For many H-1B visa holders waiting in long lines for a green card through the EB-2 and EB-3 programs, EB-5 can be a faster option to obtain the security of lawful permanent residence. Priority dates are now current as of the July Visa Bulletin for India, while investors from China and Vietnam continue to face backlogs. On March 31, 2020, USCIS implemented a new procedure for adjudicating I-526 petitions: deferring review for those stuck in retrogression, while prioritizing review for those with current priority dates and a visa is available (or imminently available). This enables those investors from non-retrogressed countries to have their I-526 petitions reviewed sooner than previous investors from China and Vietnam in retrogression. In fact, the State Department expects that more visas will be available to EB-5 investors for FY2021 because of the rollover of unused family visas due to closures of US consulates during the COVID-19 pandemic.

To learn more about the potential impact of Trump’s recent Proclamation and your EB-5 options, contact Behring and schedule a free consultation with a member of our team.