United States: What Employers and Foreign Nationals Need to Know Now About the New H-1B Entry Restrictions Taking Effect on Sunday, September 21

Foreign nationals with an approved H-1B petition and a valid H-1B visa (if required) should take urgent steps to return to the United States before 12:01am EDT on Sunday. Unfortunately, due to cyberattacks affecting many European airports, it may be difficult for many board a flight and arrive in the United States before the entry restrictions take effect.

If possible, foreign nationals may want to choose a port of entry with a U.S. pre-flight inspection station (PFI). Clearance through a PFI is a determination of admissibility to the United States and may help a foreign national’s return to the United States before the proclamation takes effect.

The ban applies to those outside the United States who are seeking entry as an H-1B specialty occupation nonimmigrant. However, it is not yet known whether H-1Bs who depart the United States on or after September 21 will be subject to the new restrictions when they seek to return to the United States; therefore, international travel plans on or after September 21 should be put on hold until further notice.

The presidential proclamation on H-1B entry does not directly apply to H-4 spouses and dependents. However, if their H-1B principal is subject to the ban, H-4 spouses and dependents are likely to be subject to the ban as well.  H-4 spouses and dependents whose H-1B principal is in the United States or not otherwise subject to the ban should be able to enter after the entry restrictions take effect on September 21, but should be prepared for confusion and delays at ports of entry. They should calmly and politely explain that they are entering in a different nonimmigrant category than that covered by the travel ban.

The proclamation addresses only H-1B workers entering to perform a specialty occupation under Immigration and Nationality Act Section 101(a)(15)(H)(i)(b). It does not apply to Chilean and Singaporean nationals entering under the separate provision for the H-1B1 program. Therefore, these individuals should be able to enter or reenter the United States on or after 12:01am EDT on Sunday, September 21, without the need to comply with the requirements of the Presidential Proclamation. However, H-1B1s should be prepared for delays and possible confusion at ports of entry. They should calmly and politely explain that their immigration category is separate from the H-1B specialty occupation category and is not subject to the new proclamation.

H-1B fashion models should not be subject to the new entry restrictions. Though they are H-1B nonimmigrants, they are not entering the United States to perform a “specialty occupation” as that term is defined under U.S. immigration law. However, they should be prepared for delays and possible confusion at ports of entry. They should calmly and politely explain that they are entering as fashion models, and not H-1B specialty occupation workers.

Along with their valid passport and valid visa (if required), H-4 travelers should carry a valid USCIS Form I-539 approval notice in their name, if any, and a copy of the principal H-1B foreign national’s approval notice, and a copy of marriage or birth certificate documenting their relationship to the H-1B. H-1B fashion models should travel with a valid passport, H-1B visa, and a copy of their Form I-129 petition and approval notice.

Chile/Singapore H-1B1s must travel with their valid passport and visa. If an H-1B1 is the beneficiary of a USCIS Form I-129 petition, they should travel with a copy of the petition and approval notice as well.

The presidential proclamation bans the entry of H-1B specialty occupation nonimmigrants as of September 21 unless their employer pays a $100,000 fee or they receive an exemption from the restrictions. We anticipate that the Administration will provide information on fee payment and exemption applications in the coming days, but this information is not available at the time of this writing.

Legal challenges to the ban are expected to be filed very soon and are likely to seek an emergency stay against the presidential proclamation. However, the timing of a stay or injunction cannot be predicted with certainty. Therefore, H-1Bs outside the United States should make every effort to return before the ban is implemented. Those with plans to depart the United States and reenter on September 21 or later should put their plans on hold and remain in the United States for now; if travel is unavoidable, they should expect the possibility of significant reentry delays.

Fragomen will provide continual updates to developments concerning the new travel restrictions. Employers and foreign nationals are urged to promptly review Fragomen alerts as they are issued.