The President’s Recent Immigration Proclamations Will Profoundly Affect Asset Management Firms and Hedge Funds

Kramer Levin Naftalis & Frankel LLP

Asset management firms and hedge funds regularly employ the very best financial and quantitative analysts and IT professionals from around the world. To secure their services, firms must sponsor these highly talented individuals for employment-based work visas. Over the past several months, due to COVID-19, the President signed a series of immigration proclamations that will affect these foreign national employees and the financial firms that employ them. Employers should be aware of bans on travel to the U.S. and limited operations or closures of U.S. embassies and consulates issuing immigrant and nonimmigrant visas as well as related exemptions and exceptions, all of which may affect their foreign national employees’ and clients’ ability to travel internationally. The proclamations’ travel bans fall into two categories: location bans (which are focused on slowing the pandemic’s spread throughout the United States) and economic bans (the purpose of which are to theoretically aid in the economic recovery of the United States by preventing certain foreign nationals from entering the U.S. to work).

Location-Based Bans

The President signed proclamations banning travel to the U.S. of all non-exempt foreign nationals who have been physically present within Brazil, the 26 countries that comprise the Schengen Area, the United Kingdom, Ireland, Iran and the People’s Republic of China during the 14-day period preceding their entry into the U.S. Among those exempt from the travel bans are (i) U.S. lawful permanent residents (green card holders); (ii) foreign nationals who are spouses of U.S. citizens or green card holders; (iii) foreign nationals who are parents or legal guardians of U.S. citizens or green card holders, provided that the children are unmarried and under the age of 21; and (iv) any foreign national whose entry would be in the national interest. A full list of the exemptions may be found in each proclamation. Theoretically, those who do not fall under the exemption categories may travel to another country not listed in a travel ban proclamation for at least 14 days preceding their intended entry to the U.S. Alternatively, they may submit a waiver request with U.S. Customs and Border Protection (CBP) based on national interest or humanitarian grounds, which are approved at the CBP headquarters’ discretion. Kramer Levin has had success in obtaining these waivers for our clients.

Economic-Based Bans

The President also signed a proclamation suspending the entry to the U.S. of certain immigrants (permanent resident applicants), which became effective on April 23. Importantly, the proclamation suspends only the entry of green card applicants who are currently outside the U.S. and who do not yet have a valid immigrant visa or other travel document (such as an advance parole document). The temporary suspension does not apply to individuals who have applied for green cards from within the U.S. (adjustment of status applicants) or to nonimmigrant visa (such as E or O status) holders.

Most recently, the President signed a proclamation on June 22 suspending the entry of H-1B, H-2B, L-1 and certain J-1 visa holders (including interns and trainees) for the rest of the year, which became effective on June 24. Notably, the proclamation only applies to individuals who (i) were outside the U.S. on June 24; (ii) did not have a nonimmigrant visa (in the H, L or J category they are using to seek entry) that was valid on June 24; and (iii) did not have an official travel document other than a visa (such as an advance parole document) that was valid on June 24 or issued on any date thereafter that permitted them to travel to the U.S. and seek entry or admission. The proclamation does not impact (i) current H, L, or J status holders, regardless of nationality, who were physically in the U.S. on June 24; (ii) Canadian status holders inside or outside the U.S. (as they are visa exempt); or (iii) E, F, O and TN status holders inside or outside the U.S. There are a number of exemptions to the proclamation, including employees providing necessary services to facilitate the immediate and continued economic recovery of the U.S.

Closure of U.S. Embassies and Consulates

Due to the pandemic, U.S. embassies and consulates abroad are closed for routine visa appointments. In the coming months, theses posts will begin to reopen with reduced capacity. During the closures, Kramer Levin has successfully assisted a number of financial clients in securing expedited or emergency visa appointments.

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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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