Trump Extends Work Visa Restrictions

Over the weekend, President Trump extended the work visa restrictions he initially implemented via executive order on June 22, 2020. The executive order had been scheduled to expire on December 31, 2020, but Trump has now extended the restrictions through March 31, 2021. Nevertheless, President-Elect Biden will have the opportunity to rescind the visa restrictions as early as January 20th, which is when he will be inaugurated.

Overview of Visa Restrictions

The executive order applies to foreign nationals who were not in the United States as of June 24, 2020 and who seek to enter the United States in H1B, H-4, H2B, L-1, or L-2 status, along with people requesting admission in J-1 status.

Initially, there were a few exceptions to the order, such as for those who had a valid nonimmigrant visa as of the effective date, but it otherwise appeared to be a fairly broad visa ban. Fortunately, in the weeks that followed, the U.S. Department of State (DOS) provided a number of additional exceptions.

Some of the key exceptions to the executive order for the H1B category include the following:

• H-4 dependent spouses and children, where the principal H1B spouse is already exempted.
• The petitioning employer has a continued need for the services or labor to be performed by the H1B nonimmigrant in the United States. Labor Condition Applications (LCAs) approved during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business.
• The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.
• The wage rate paid to the H1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.
• The H1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.
• Denial of the visa will cause financial hardship to the U.S. employer.

For L-1 workers, the DOS provided an exception for any worker who is a senior level executive, manager, technical expert, or specialist meeting a critical business need of an employer meeting a critical infrastructure need.

Conclusion

As noted, President-Elect Biden could undo the executive order upon taking office later this month. However, from a practical standpoint, it is not clear how much of an impact this executive order has really had on foreign national workers and their employers. The ongoing pandemic has made it extremely difficult to obtain a nonimmigrant visa appointment. Therefore, even without a travel ban, many foreign national workers may have to keep waiting months to get a visa.

Copyright © 2021, MURTHY LAW FIRM. All Rights Reserved