COVID-19 Restrictions on Certain Visas

The White House issued its anticipated nonimmigrant visa ban, and extended its immigrant visa ban, on June 22nd. A week later, the White House amended its nonimmigrant ban, further restricting entries to the U.S.

The professional work classes impacted are the H-1Bs, H-2Bs, L-1s, and certain J categories. Canadians largely avoid the nonimmigrant bans, since they typically don’t need visas, even in these professional work authorizations. It seems the treaty visas were left out too, including the TN, E-1, E-2, H-1B1, and E-3 categories. So far. The Congressional Research Service has published a good summary of the bans, entitled “Covid-19 Related Suspension of Nonimmigrant Entry.

A few more things to know on the Nonimmigrant Proclamations:

  • The restrictions apply to noncitizens outside the U.S.. They do not directly impact change of statuses and extensions of status in the U.S.
  • The consulates around the world remain closed to routine services. Emergency appointments are sometimes available related to COVID care and research, food supply positions, and other national interest purposes.
  • The DHS Secretary can recommend changes to the proclamation after 30 days.
  • J-1 categories impacted are interns, trainee, teacher, camp counselor, au pair, and summer work travel.
  • Exemptions apply to persons in the U.S. on June 24, 2020; spouses and children of U.S. citizens; lawful permanent residents; those with valid visas in the respective categories as of June 24th; and persons providing temporary labor to the food supply chain.
  • The Proclamation includes further ominous directives to HHS, DOL, and DHS, portending further potential restrictions related to COVID, labor certifications (EB-2, EB-3), and further biometrics and arrest records checks.

The goal of the proclamations is to help the U.S. labor market, due the layoffs caused by the COVID crisis. Helping the U.S. worker is a fine goal, but restricting immigration in this manner may have the opposite effect.

Immigration law, policy and economics is complicated. U.S. business immigration policy is is not a zero-sum game, where one foreign worker position is swapped for one U.S. worker position. Businesses would rather hire the U.S. worker than go through the hoops and costs to hire a foreign worker. However, sometimes the foreign worker is needed, to help the business grow. Take for example the L-1 intracompany transfer visas category, which is now banned. This category is for executives and managers. It is not helpful to tell multi-national companies that they can’t move their key managers and executives here. I’ve already heard from businesses who’ve said they will have to cancel projects which employ U.S. workers, because of the challenges of getting their key personnel on-site. Similar issues arise with the other categories, and particularly the H-1B. The business community was strongly opposed to these restrictions, because they know how hard it can be to get qualified professionals in some cases.

We’ll have to wait and see what happens. I expect there will be some litigation, and perhaps the White House will revisit some of these issues, in the face of pressure from business. There is also the likelihood that USCIS will furlough 70% of its staff, which will have additional implications for immigration planning. Of course, there’s an election in November, which might lead to changes.

For now, noncitizens in these and other nonimmigrant categories should seek legal advice before planning international travel. We want to avoid seeing someone who is permitted to stay here depart, and struggle to re-enter. Also, even with these new bans in place, it will often makes sense to pursue applications due to processing time and other hurdles. More caution than usual is warranted in the immigration context, but many issues can be navigated with time and flexibility.