Employment-based Visas and COVID-19: Added Challenges and Concerns
Updated: May 3, 2021
By Alexandra VanDerlyke & Zachary Johnson
February 24, 2021
The pandemic has stalled immigration across all visa categories, but this has also led to some areas of increased flexibility
President Biden has outlined a strategy for significant changes to the immigration system, but experts believe that changes are unlikely to occur quickly
Highlights from public comments made by thought leaders in immigration
If you have been wondering if you’ll be able to complete (or even start) your immigration journey in the midst of a global pandemic, you’re not alone. Hundreds of thousands of people from all over the world attempt to immigrate to the United States each year1. The process of immigration can be challenging even when there isn’t a pandemic.
Challenges faced by petitioners and beneficiaries
As COVID-19 continues to leave a swath of destruction in its wake, its impact on US immigration doesn’t seem to be easing. Visa processing has been stalled, borders all over the world have been closed, access to healthcare has been impacted, many are experiencing a loss of income, and thousands of people remain in immigration detention centers, where the spread of COVID-19 is high. For an overview of current information on the status of global borders, please visit this comprehensive resource managed by Fragomen Global LLP.
The most notable concern many prospective immigrants are facing is suspension of entry. If you are not currently residing in the United States on a visa, you may face challenges getting into the country. Former president Donald Trump issued a series of proclamations suspending entry into the US during his term based on his administration’s policies, and in response to the pandemic. While President Biden has already issued a proclamation to end discriminatory bans preventing certain individuals from entering the US, based on the current state of COVID-19 global infection spread, the remaining entry bans may not be lifted until the pandemic in under control.
Increased flexibility in some areas due to COVID
Additionally, the USCIS has developed flexibility policies based on the COVID-19 pandemic. According to attorney Alexander Segal, “Under the policy, the USCIS will consider responses to affected notices and forms so long as they are submitted within 60 calendar days after the response due date set in the request or notice.” The forms being granted flexibility include: Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke, among others. At this time the flexibility has been granted through the end of March 2021.
Recently, LaborLess provided a discussion of some of the changes to LCAs. In particular, there some of the changes include: i) some additional leeway in short-term placement, though the rules are a bit fuzzy, ii) changes related to areas of intended employment, iii) and when to submit a new LCA.
Potential changes with the Biden / Harris administration
With the inauguration of President Joseph R Biden, Jr, many people felt that a weight had been lifted, and that the immigration regulations put in place by the Trump administration would finally be reversed. While President Biden has outlined a strategy to introduce sweeping changes to the US immigration system, his plans may be put on hold until the global pandemic is more under control.
Sapochnick Law Firm in their post on visalawyerblog.com, summarizes the impacts of Proclamations 10014 and 10052, which were issued during the Trump presidency. While President Biden intends to overhaul United States immigration policy, Sapochnick summarizes the current situation by saying “It appears that the Biden administration remains cautious due to the high rates of infection in the United States and around the world. It should be noted that in recent days President Biden has chosen to continue COVID-19 related executive orders passed under former President Trump…”
While Proclamation 10052 will remain in effect (with the exception of Section 1), on February 24, 2021, President Biden issued a revocation of Proclamation 10014. Elissa Taub of Siskind Susser PC sums it up on LinkedIn, “This unnecessary ban has kept families apart and kept thousands of people from realizing their American dream. This is such wonderful news!”
There are exceptions to Proclamation 10052, as noted by Alka Bahal of law firm Fox Rothschild, LLP. In her post Trump Extends Travel Ban for Certain Nonimmigrants and Immigrants, she states that “There are limited exceptions which allow entry for H-1B/H-4, H-2B/H-4, J-1/J-2, and L-1/L-4 visa holders, including (1) individuals who held a valid visa stamp in their passport, but were outside of the U.S. on the effective date of the proclamation, and (2) individuals who possess an official travel document other than a visa.”
Other exceptions to the entry bans are described by Tahreem Kalam of Minsky, McCormick & Hallagan in the post Trumps Travel Bans Suspending Entry of Immigrants and Nonimmigrants extended until March 31, 2021. For example, the entry ban does not apply to “…nonimmigrant workers coming to the U.S. in other employment-based visa categories, such as TNs for Canadians and Mexicans, E-3s for Australians, H-1B1s for Singaporeans and Chileans, O-1s for extraordinary workers, E-1 treaty traders and E-2 treaty investors, H-3 trainees, P performers and athletes, R-1 religious workers, etc.”
Vaccinations will likely lead to improvements at all levels
While the pandemic has impacted immigration in challenging ways, there are exceptions that will be beneficial for some immigrants. Currently, the setbacks remain, but the introduction of vaccines will lead to increased immunity and eventually a reduction in the spread of COVID-19. As pandemic management evolves, there is hope that President Biden will implement the changes his administration has proposed to the current immigration system. Lifting entry bans will be one part of these changes that will pave the way for immigrants to move forward in their journey.
*Citations were taken from publicly posted comments or blogs. There is no affiliation between ProfVal and the experts cited. Nothing provided on ProfVal.com is legal advice.