What Donald Trump has really done: The most troubling visa queries, answered

Trump’s June 22 order of temporarily suspending various categories of visas for immigrants did little to hurt the foreign students. However, a new order has now asked students to leave the US if their school or university is conducting online classes in fall 2020.

According to the US Immigration and Customs Enforcement’s order announced on July 6, only those students will be allowed to stay in the country whose university is taking in-person classes or a mix of online and in-person.

The agency has also made it clear that no new visas will be issued now and the students with existing stamped visas will not be allowed to enter the country. ET Online decodes some of the most pressing queries playing on Indian minds.

What if you have an H-1B visa but no job?

One of the biggest drawbacks of the H-1B visa is that a visa holder’s lawful status in the US is based solely on employment. H-1B recipients cannot stay unpaid for more than 60 days.

H-1B visa holders who are out of work for up to 60 days (or until your status expires if it’s sooner than 60 days) have to either find another employer to sponsor them or apply for a change in visa status.

For those who manage to find a job, the new employer can file a petition and they can actually start working even before approval is obtained.

In case the H-1B visa holder fails to get employed, they have an option to apply for a “change of status” to F-1, L-1 or H-4, based on what they qualify for.

These actions are necessary because ‘unlawful presence’ in the US can invite a ban for 3 to 10 years, depending upon the overstay.

What if my visa status is about to expire?

The US President’s move to impose visa restrictions would not hurt those who may be employed but whose visa status is about to expire.

So, for those who find themselves in this situation, it’s crucial that their employer files an extension petition with the US Citizenship and Immigration Services (USCIS) before the status expires.

In case an H-1B visa holder is past the 60-day grace period, they can apply for a nunc pro tunc decision (retroactively to correct an earlier ruling) with the USCIS through their attorney or employer.

The USCIS holds discretionary powers. Considering the coronavirus pandemic as ‘exceptional circumstances’, the immigration agency may grant an approval with an extension, allowing the visa holder to stay in the country.

What about those married to H-1B holders, or those with H-4?

Spouses and children (other than US citizens) of H-1B visa holders would also be hit hard by Trump’s proclamation.

According to the order, if an H-1b visa holder hasn’t received the approval then the spouse will not either.

Spouses of the H1-B visa holders whose visas expired and weren’t renewed before June 23, will now have to wait until the next year. The same applies to those whose visas are not stamped.

However, those who have a valid H-4 but are currently out of the US, will be able to return without any difficulty.

The new order also doesn’t affect those H-4 holders who have applied for H-4 Employment Authorization Documents. While it is still a point of contention and the DHS has recently proposed to disallow dependents to apply for employment authorization, there does not seem to be any hiccups for the time being.

What if you are in India to get your visa stamped?

Trump’s proclamation is also likely to hurt those who were in their home country for the renewal of their visas.

H-1B visa holders and their spouses who do not have their visa stamped, will now have to wait for 6 months as Trump’s executive order bans issuing of any new visa until December 2020.

The order implies that those who do not have a valid visa stamped on their passports as of June 24 will not be allowed to enter the US till the year-end. The curbs, however, does not impact those who managed to get their visa — H-1B or dependent — stamped before June 24. These people can travel back to the US any time they want.

What if you have a valid work visa?

Those with a valid work visa have nothing to worry about. According to the executive order signed by Trump, new H-1B visas will not be issued. So those who have a valid visa, irrespective of whether they are currently in the US or not, wouldn’t be affected by the visa freeze.

The proclamation would also not affect those with a valid status in the United States.

Also, the visa holders whose families are already present in the US shall not be impacted by the visa ban.

What happens to those with H-1B this year?

Trump’s latest ban on immigration visas will hurt people who have already applied for this year’s lottery the most. With the lottery opening for applications in early-April, the cap for all categories was maxed out by April 19, 2020.

Under those who have been selected, two broad categories emerge — foreign nationals who have applied for an H-1B as fresh applicants, and those who are already in the country on different visas, but now want to switch to the H-1B.

For those trying to convert to H-1B, as long as they are within the United States, the ban won’t affect them. As soon as they get approved in the lottery system, they receive an I-94 which allows them to legally stay in the country. However, in case they have left the country or do so now, they will need a visa to get back — which is where the ban comes in. For foreign nationals planning to move to the US on fresh visas, this ban would hamper their plans to join work this year — October is the earliest employment start date for CAP H-1Bs. With visa processing slated to resume only after December 31, there could be further delays as well.

What happens to parents with H-1B, children status?

“Household members” of non-immigrants, like elderly parents and partners, do not qualify for a derivative visa. Hence, they are allowed to enter the US on a B-2 visa.

This visa is exempted from Trump’s executive order.

Meanwhile, children of those on H-1B are issued an H-4 visa. This means that whatever happens to their parents is likely to happen to them as well. However, US citizen children of the H-1B visa holders will remain unaffected by the proclamation.

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