Business Immigration Slowly Picking Up in the U.S. but Large Restrictions Remain

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

The federal government has started alleviating certain business immigration pressures that have built up over the past few months amid the coronavirus pandemic. Consulates have resumed limited activities with respect to issuing visas, and the Department of State has developed a more formal protocol allowing consulates to issue “National Interest Exception” waiver letters to certain travelers who previously fell under the United States’ various European travel suspensions.

That said, each of President Donald Trump’s proclamations that have been issued this year with respect to travel and processing restrictions remain in place, and a fact-specific review of any individual case is important to determine how someone might be impacted by the recent movement, if at all. Below is a high-level summary of where things stand with business immigration in the U.S.

Suspension of Certain Types of Work Visas

President Trump’s proclamation from late June suspending certain types of work visas remains in effect, but there continues to be inconsistency and confusion about how it is applied to any particular individual. The nonimmigrant visa programs impacted include 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.

The Department of State has issued guidelines as to when someone may be eligible under the National Interest Exceptions under the June proclamation, but consulates have not been consistent in following this policy. 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 and U.S. government work – it is unlikely that new visas in these categories will be issued through at least December 31, 2020.

Travel Restrictions

Travel restrictions for individuals traveling from the 26 Schengen Area countries in Europe, the United Kingdom, China, and certain other countries remain in place, but U.S. consulates have started to process visas that aren’t part of the late June proclamation. These include E visas for temporary workers; O for professors, researchers, scientists, entertainers, and athletes; TN visas for temporary workers from Canada or Mexico; and F student visas.

Additionally, the U.S. consulates in Europe are processing the “National Interest Exception” waiver letters providing some relief from the travel suspension from the Schengen Area countries, the U.K., and Ireland, and there are now options to request those waivers through both the Department of Homeland Security and through Customs and Border Protection for those travelers who already have a valid visa or registration through the Electronic System for Travel Authorization (ESTA).

However, we continue seeing some inconsistencies in how the consulates are applying those waivers, and the processing times vary. Still, there are now more ways for business travelers to come to the U.S. directly from restricted European countries to begin or resume approved business activities.

Overarching Takeaways

Travel in and out of the U.S. is still restricted, and we recommend careful consideration of each case to determine the best route forward. 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. may now finally have a few additional options to come to the U.S. as business activities start to normalize. In any event, the situation is constantly evolving, so also watch for updates.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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