Since the Presidential Proclamation on the H-1B travel ban was issued, confusion has spread among employers, workers, and even immigration lawyers.
Proclamation states that the entry into the United States of H1b beneficiary is restricted, except for those H1b beneficiaries whose petitions are accompanied or supplemented by a payment of $100,000. Then it went on to say that DHS shall deny entry to any H-1B nonimmigrant for whom the prospective employer has not made the payment.
Based on the text and plain reading of the Presidential Proclamation many people including immigration lawyers and major technology firms interpreted it as a travel ban on anyone with a H1b visa trying to enter USA. The word “or supplemented” after “accompanied” was open to different interpretations including the interpretation that even existing H1b visa holders will be subject to travel ban unless $100,000 is paid as a supplementary fee. Today, there have been series of tweets by White House, CBP and USCIS on this issue.
Existing H1b visa holders are safe to travel
White House Press Secretary Karoline Leavitt tweeted that those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation.
CBP tweeted a memo which said the Proclamation does not impact H1b beneficiaries of currently approved H1b petitions or H1b beneficiaries with valid H1b stamping. Further, they said the Proclamation does not impact the ability of any current visa holder to travel to or from the United States.
USCIS tweeted a memo which said that the Proclamation does not impact the ability of any current visa holder to travel to or from the United States.
So, all the above tweets taken together confirm that the people with H1b stamping are not impacted and they can travel and enter USA.
Workers with existing H1b approval but no H1b stamping should not travel
For people with H1b approvals but who don’t have stamping there is some lack of clarity at this point of time since CBP tweet says “does not impact H1b beneficiaries of currently approved H1b petitions” but White House Press Secretary tweet says that the ban applies only to new visas, not renewals. Not sure what she means by new visas and not renewals. There could be even a H1b worker right now in USA who never had a H1b visa stamp in his/her passport. For this H1b worker when he/she goes to a US consulate for stamping, the H1b visa that is applied will be a new visa and not a renewal. The only agency that can give clarity on this issue would be Department of State.
So, as things stand now based on the tweets we can say if someone has H1b visa stamp in their passport they are safe to travel and someone who has H1b approval, but no visa stamp should wait till Department of State issues a clarification before they travel to get their H1b visa stamped.
To whom the 100k payment apply:
The Proclamation says USCIS shall restrict decisions on petitions not accompanied by a $100,000 payment for H1b workers who are currently outside the United States.
H1B petitions filed for workers outside USA: Here there is no ambiguity. $ 100,000 payment is required for any H1b petition filed for a worker who is currently outside USA. So, this $ 100,000 payment would apply to any type of H1b petition (quota or exempt) if the worker is outside USA at the time of filing the H-1b petition. It could be an employer filing a H1b petition for a worker outside USA under the H1b quota or an employer filing a H1b petition for a worker outside USA who is not subject to the quota because he/she was already counted in the quota or that worker outside USA is not subject to the six-year H1b limit. Basically, if the worker is outside USA, then it triggers the $ 100,000 fees.
H1b petitions filed for workers inside USA: The $100,000 payment does not apply for any H1B petitions filed for a worker who is inside USA. So, this $100,000 payment does not apply to the following categories:
- H1b Transfer / H1b Extension / H1b Amendment
- Change of status from F-1 to H-1B or any other change of status to H1b
H1b petitions currently pending with USCIS: Even these H1b petitions currently pending with USCIS do not require $100,000 payment. They will be adjudicated without any additional fees.
As of now, H-1B visa holders with valid stamping are safe to travel and re-enter the United States. Workers who only have approval notices but no visa stamps should wait for clarification from the Department of State before traveling for stamping. The $100,000 fee applies only when an employer files a H-1B petition for a worker who is outside the United States.
Employers should carefully assess the location of their workers before filing new petitions, and employees should monitor Department of State updates closely. We will continue to provide updates as this policy evolves.
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