Navigating USA Business Immigration IssuesJanuary 11, 2021
Employer considerations in era of COVID-19 & changing administrations
Guest Post by Melissa Azallion Kenny, Partner, Burr Forman McNair
Businesses are facing a period of uncertainty not seen in modern history. The instability placed on the economy from COVID-19 in combination with the ever-growing political divide seems unsustainable at times. Immigration and the global mobility of employees has forced its own share of uncertainties. The strategies addressed below are designed to offer potential solutions in the changing landscape.
Travel essentially came to a halt in 2020 for much of the world. As the number of COVID-19 cases continues to rise globally, especially in the U.S., employers are struggling to conduct business as usual. Many countries have banned U.S. citizens from entry or have implemented mandatory quarantine measures. Likewise, the U.S. started restricting travelers from China in February, and the list of countries subject to U.S. travel bans has grown to over 30 countries on three continents. Businesses have had to strategize ways to aid in the return of foreign national employees into the U.S.
One strategy is to have employees who would normally be subject to a travel ban go to a third-country not on the banned list for a 14-day period. The foreign national can enter the United States and overcome the travel ban. One hurdle, however, is that many countries also have a mandatory quarantine period for anyone entering their country, with limited exceptions. Also, it is important to keep in mind that circumventing the travel ban by waiting out the 14-day period in a third-country assumes the foreign national has a valid visa in their passport to return to the U.S. and also can legally enter the third country. If travel to a third country is not a viable option, another strategy might be the National Interest Exception (“NIE”) which is discussed below in more detail.
There are other travel restrictions based on Presidential Proclamations that ban immigrant and non-immigrant visa issuance as well. These bans remain in place and will likely be extended as COVID-19 numbers continue to climb.
Consulates and Visa Issuance
U.S. Consulates around the world remain either closed or have limited appointments available for certain visa types. Many foreign embassies and consulates in the U.S. are also closed for visa appointments except in emergencies. It is important to consider the visa strategy at the outset and determine if there are any obstacles to obtaining the visa.
Employers and employees should also be aware of a six-month pilot program, which began on December 24, 2020, whereby applicants for B-1/B-2 visas from countries with overstay rates of 10% or higher and who have been approved for an inadmissibility waiver may be required to post a bond as a condition of visa issuance. Bond amounts are set at three levels: 1) $5,000.00, 2) $10,000.00, and 3) $15,000.00; but, the bond requirement can be waived by consular officers upon their recommendation based on humanitarian or NIE circumstances. The countries subject to the pilot program include: Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen.
National Interest Exceptions (NIE)
There are exceptions to certain travel and visa bans, but they are limited in scope and arguments must be narrowly tailored and carefully crafted. Individuals who qualify for an NIE include those who are critical to the defense, law enforcement, diplomacy or national security of the U.S., who provide medical care to hospitalized COVID-19 patients or perform medical research to combat COVID-19, or are necessary to facilitate the immediate and continued economic recovery of the United States.
Investors, technical experts and specialists, senior-level managers and executives, and other workers whose travel provides a substantial economic benefit to the U.S. economy must satisfy other criteria as well. Employees of businesses who meet a critical infrastructure need are also given consideration. Critical infrastructure sectors include: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.
For H-1B petitions, factors such as an offered wage that exceeds the Prevailing Wage by at least 15% or where denial of the visa will cause financial hardship to the U.S. employer are weighted more heavily. Also, a recent court decision exempts thousands of employers from some visa restrictions. If a business is a member of the National Association of Manufacturers, the U.S. Chamber of Commerce, Technet, Intrax, Inc., or the National Retail Federation, the business and the employee should be exempt from the ban. Most recently, a subsequent order clarified that visa applicants covered by the order “must receive treatment from the consulates at least as favorable as any other category of nonimmigrant visa applicant.” Visa applicants should provide evidence that their employer or petitioner is a member of one of the listed entities at the time of the visa application or interview.
Obtaining an NIE exemption is not guaranteed even if the employee and/or the employer meet the stated qualifications. Requests that do not demonstrate compelling reasons for the need to travel to the U.S. will not likely be approved. However, a well-constructed argument, solid strategy, and early planning increase the likelihood of success.
H-1B Visa Program
In our previous article, “Effective Visa Planning for U.S. Market Entry” on the Burr & Forman Immigration Blog, we provided an overview of the H-1B program and its latest changes. To quickly recap, the H-1B program is used by U.S. employers to hire foreign nationals who work in a “specialty occupation” where the position requires at least a bachelor’s degree in a specific field. Employers must also pay H-1B workers the Prevailing Wage (i.e., the minimum wage employers are required to pay a foreign national based on four tiered levels, which is, in effect, the market wage for the position). H-1B beneficiaries are generally eligible for six (6) years in H-1B status, with additional extensions available for those involved in Green Card sponsorship.
H-1B Registration and the “Lottery”
In 2020, USCIS rolled out the new H-1B registration system in which employers electronically register their H-1B petitions during a 20-day registration period. Under the new registration system, the employer prepares and files a full visa petition only if selected in the lottery, rather than preparing and submitting a full visa petition at the outset. The new registration system also allows multiple “drawings.” If the initially selected petitioners do not file their petitions within the 90-day filing window, other petitioners still have a chance of being selected.
The lottery process, however, could be changing in 2021. The Trump administration published a proposed rule in November which is scheduled to go into effect on March 9, 2021, which would replace the H-1B random selection process under the new rule, Petitions will be selected based on the highest Prevailing Wage level where the offered wage equals or exceeds the Prevailing Wage for the particular occupational code and area(s) of intended employment. USCIS would rank and select the registrations received beginning with Wage Level IV – the highest wage – and continue selections in descending order with Wage Levels III, II, and I. If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the numerical allocation, USCIS will then randomly select from all registrations within that particular wage level to reach the applicable numerical limitation. However, the Biden administration could place it on hold and repeal it under the Congressional Review Act. Employers should keep a close eye on whether the final rule will go into effect.
Prevailing Wages and Filing Fees Changes Have Been Halted
In Fall 2020, the Trump administration sought to increase Prevailing Wages, which would have set the Prevailing Wage for an entry-level H-1B employee at the 45th percentile – up from the 17th percentile – of the wages paid to workers in the same occupation in the same geographic area. The administration issued an interim final rule which went into effect on October 8, 2020. However, federal district courts have since blocked the rule from taking effect. Biden has hinted at support for changes to the H-1B program and establishing a wage-based allocation process, so other H-1B changes could be forthcoming.
USCIS also attempted to implement a revised filing fee schedule for several types of Petitions filings including H-1B, H-1B1, H-2A, H-2B, L, O, E and TN categories, in addition to several others. The new forms and fees were to go into effect on October 2, 2020, but for now, a U.S. district court has stayed the implementation and effective date of the final rule. The injunction did not, however, keep the Premium Processing fee from increasing to $2,500.00. The Premium Processing fee permits employers to request expedited processing for certain petitions with adjudications guaranteed in fifteen business days.
Overcoming Challenges Through Other Visa Options
There are several other non-immigrant options available for bringing in foreign national workers which have not been restricted by the Presidential Proclamations, although Consulate closures and other travel bans may still hinder the process. In considering the options below, employers are reminded to be cautious about the types of questions asked on an application in determining an applicant’s ability to work in the U.S.
Deferred Action for Childhood Arrivals – DACA
More than 640,000 foreign nationals had work authorization through DACA when the Trump administration issued its memo in July 2020 to place new restrictions on the program. Subsequently, a federal judge ruled the Acting Secretary of the Department of Homeland Security was not legally serving when he signed rules limiting applications and renewals for the DACA program, thereby making those rules invalid. For businesses, this opened up the opportunity to find hundreds of thousands of employable workers. President-elect Biden is expected to repeal the Executive Order restricting the DACA program.
E-1/E-2 Treaty Trader/ Investor Visa
The E-1/E-2 visa is for businesses that engage in substantial trade or make substantial investments in the U.S. where the business and the proposed employee or investor have the same nationality. Employees can fill manager/executive roles or specialist positions. Unlike the H-1B or L visas, there is no maximum period of stay.
The E-3 resembles the H-1B visa and may be an option if an employee is an Australian citizen and also meets the specialty degree requirements where a bachelor’s degree is required for the position. The process for obtaining the E-3 is similar to the H-1B, but there is no maximum period of stay like the H and L visas, and the numerical limitations are rarely, if ever, met.
The TN visa is extremely useful if an employee is a Canadian or Mexican national and the position the employee will fill is on a list of designated professional occupations, which typically require a bachelor’s degree. Some of the most common occupations on the list include accountants, engineers, lawyers, pharmacists, scientists, and teachers. Like the E visas, there is no maximum period of stay. The rules for Canadians and Mexicans are also slightly different.
The O-1 visa is reserved for individuals who demonstrate extraordinary ability in the fields of science, education, business, athletics, or art by sustained national or international acclaim, and who are coming to the U.S. to continue work in the area of extraordinary ability. Although the criteria for qualifying for the O-1 visa are stringent, there is no maximum period of stay in O-1 status as long as the opportunity continues to exist.
F-1, M-1, and J-1 Visas
The F-1 and M-1 student visas may offer temporary work options but are not as flexible as the H-1B visa in terms of full-time employment. If the employer is a college or university, the F-1 or M-1 student may be able to work on campus for the school. Students may also have the ability to work for an off-campus employer through Curricular Practical Training (“CPT”) or Optional Practical Training (“OPT”). CPT and OPT have distinct application procedures and specific regulatory requirements. Depending on the F-1 student’s major, employer, and job, the F-1 student could take advantage of up to three years or more of employment authorization.
J-1 exchange visitors are generally limited to the scope of their program objectives and activities. The Trump administration suspended the issuance of J visas for certain au pair, intern, trainee, teacher, camp counselor, and summer work travel programs, although there are several exemptions available that may be worth exploring. The physician, professor, research scholar, short-term scholar, and specialist programs are also permitted, and these may have short-term employment options. Each J category has its own rules, including a maximum period of stay and repeatability limitations.
Some of these approaches may change suddenly due to shifting immigration policies, last-minute Presidential Proclamations, and/or global travel limitations due to COVID. With the incoming Biden administration, we can expect to see significant differences in the business and family immigration landscapes as well.
For questions about these or other immigration issues, please contact Melissa Azallion Kenny of Burr & Forman’s immigration team at [email protected] or (843) 785-2171.
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