Exploring Near and Long-Term Business Immigration Hurdles in the U.S. in light of the COVID-19 Pandemic and the change in the U.S. Administration under President Biden
UPDATE: This article has been updated to reflect that the Biden administration has formally rescinded the public charge rule, which had required a tremendous amount of documentation regarding income for even the most highly paid employment-based applicants.
Businesses looking to use a variety of work visas in the U.S. will continue to face hurdles well into 2021 as the impact of the pandemic and the change in presidential administration evolves over the next several months.
Former President Donald Trump’s restrictions on the issuance of H-1B visas for professional workers, H-2B visas for temporary non-agricultural workers, J visas for participants in work and student exchanges, and L visas for intracompany transferees were extended until the end of March. President Joe Biden’s administration has signaled it may revoke those sooner, but other priorities may delay immediate action before these restrictions expire anyway. The Biden administration has also put back into place or added to other restrictions impacting business travel into the United States, including requiring a negative COVID-19 test to fly into the U.S. and directing U.S. government agencies to review additional measures to mitigate the spread of the COVID-19 virus.
The coronavirus restrictions are only part of the story though. There continue to be other immigration headaches for businesses that will take longer for Biden to address regardless of the state of the pandemic. These matters include a complicated issue tied to per-country limits on employment-based immigrant visas. It is an example of a thorny issue for the federal government to address and for businesses to navigate until and only if more comprehensive immigration reform is passed.
Near-Term Hurdles for Business – Travel Restrictions
There is no flexibility on one of the latest requirements: The Centers for Disease Control and Prevention (CDC) requires all passengers, including U.S. citizens, permanent residents, and foreign citizens alike, flying into the United States to show a negative COVID-19 test or proof of recovering from the coronavirus within the last 90 days. The COVID-19 test needs to have been taken within three calendar days of the flight’s departure. All travelers should review the latest CDC restrictions before undertaking any travel as these requirements change periodically. The CDC also updates its recommendations regarding travel on a regular basis as well. Individuals who fail to comply with these requirements may not be able to board flights or may be turned away at the U.S. border. For foreigners traveling under valid visas or the visa waiver program, a denial or refusal of admission to the U.S. could have significant immigration consequences for future travel to the U.S.
Other travel hurdles may allow for more flexibility in planning. While Biden has either extended or created new restrictions on travel from the 26 Schengen Area countries in Europe, the United Kingdom, Ireland, Brazil, China, Iran, and South Africa, qualified applicants may request “National Interest Exception” (NIE) waivers through the Department of State, the Department of Homeland Security, or through Customs and Border Protection for travelers who already have a valid visa or registration through the Electronic System for Travel Authorization (ESTA). The qualification criteria for such an NIE waiver depends on the region from which the traveler is coming and advance planning is critical.
There are also exceptions for the suspension of issuance of certain work visas referenced earlier, even if Biden does not revoke the implementing proclamation before the end of March. More specifically, the Department of State has issued guidelines clarifying who may be eligible to apply for NIE waivers from these as well, but the consulates have not been consistent in implementing that guidance, so it is still important to review closely whether a case may qualify. Unless an applicant for an H-1B, H-2B, J, or L visa is working in a field that clearly falls within one of the stated exemptions – which are primarily tied to public health, U.S. government work, or businesses deemed within critical infrastructure to the U.S. – it is unlikely that new visas in these categories will be issued until the beginning of April, assuming that the suspension is allowed to expire as planned.
With respect to either type of NIE waiver – whether for the travel restriction or the suspension of issuance of visas in certain categories – one of the other major issues with respect to immigration processing has been the closure or reduced operational capacity of U.S. Embassies and Consulates overseas. While some Consulates have remained open for some level of visa processing, most Consulates have closed or operated on significantly reduced capacity since March 2020. This reality has dramatically impacted the ability of foreign national travelers to apply for any visas in their home countries at all, much less to request an NIE waiver.
Some companies have asked if outsourcing can be a solution in the meantime. Outsourcing can be cost efficient with the right partner, but with respect to the immigration restrictions companies may really just be passing on the problem. If the outsourced company is not compliant with U.S. laws, then it and the partner company may face liability. In this case, due diligence and proper contracting with the outsourcing company is key.
While the pandemic continues, the bottom line is that travel in and out of the U.S. will remain restricted. For those travelers who do not need to leave the U.S., remaining in the U.S. is still advised. Individuals outside of the U.S. have a few options to come to the U.S. as business activities start to normalize. Across the board, businesses should carefully consider each case in partnership with immigration attorneys to determine the best route forward and the pros and cons of traveling or applying for immigration benefits in the U.S. or with U.S. Consulates abroad.
Longer-Term Hurdles – Immigration Policy/Regulations
Businesses continue to face certain immigration challenges that are not driven by COVID-19, and these challenges will likely persist beyond the pandemic. There remains a huge, complicated issue that businesses, the White House, and Congress largely want to address but come at from different angles: the limits on how many immigrant visas we allow from each country and in each preference category. The tech industry wants to eliminate these limits right away, as they have a disproportionate share of Indian and Chinese immigrants stuck on waiting lists of up to 15 years to obtain permanent residency. Tech companies argue the government should instead prioritize the oldest cases.
But if that happens, many in the manufacturing industry will cry foul because European and South American workers would essentially trade places on the waiting list with Indian and Chinese workers. Manufacturers and other companies that rely on the European and South American workers would argue that is not fair without an interim fix to address the short-term ability for these workers to stay while the permanent residency cases are pending. More specifically, many of the Indian and Chinese workers are on H-1B visas that can usually be renewed indefinitely while they await a decision on their green cards. As a result, the wait list does not prevent them from continuing to work in the U.S.
On the other hand, many Europeans are on L visas, which can only be extended for up to five- or seven-years total. The E visa is also not an ideal option because only certain countries will qualify, and even so, the E visa does not clearly allow someone to pursue permanent residency concurrently. In the end, Germans for example who are already working at a U.S. manufacturing facility in South Carolina and were on track to receive a green card in three years may suddenly have to wait 10 years – and they can’t keep working in the U.S. after their visas expire.
Those are just a few of the competing priorities lawmakers and the Biden administration will face in addressing per-country limits and visa caps on immigrant visas. The road to changing those limits runs through Congress, so it will be important for businesses to review potential legislation as it is drafted and offer their perspective to their representatives. Because of both the complexity of this issue and the other priorities Congress is currently focused on, businesses are likely safe to continue planning for their near-to-medium-term personnel needs under the current system.
There remains a complex and restrictive set of policies impacting companies’ ability to hire or transfer workers in the U.S. Both near- and long-term, it can be valuable to partner with immigration attorneys to determine how best to navigate this evolving landscape and adjust workforce strategy as policies change.
Elizabeth Gibbes is an attorney at Parker Poe in Charleston, South Carolina, who focuses on international business and immigration. She can be reached at email@example.com.