Overview
The Presidential Proclamation prohibiting entry to the US by foreign nationals in key temporary, employment-based, immigration categories expired on March 31, 2021. As expected, the Biden administration permitted Presidential Proclamation 10052 to remain effective through to expiration, but did not extend the broad restrictions on certain H-1B (temporary professional), H-2B (temporary non-agricultural worker), J (exchange visitor) and L-1(intra-company transferee) foreign nationals. This reversal of a policy which began on June 22, 2020, is significant for multinational companies and others who rely upon foreign talent within the specified categories.
Economic Travel Suspension Background and Developments
The economic hardships experienced as a result of the COVID pandemic served as the basis for Presidential Proclamations limiting the ability of foreign nationals to enter the US in specific immigrant (permanent) and temporary (non-immigrant) immigration categories. These broad Presidentially-created restrictions, precluded large numbers of foreign nationals who otherwise met existing legal and regulatory immigration requirements from obtaining visas and/or entering the US. As of March 31, 2021, both restrictions have ended.
We discussed the termination of the economically-based immigrant suspension in our February 25, 2021 Client Alert, Biden Administration Revokes Order Suspending Entry into the United States by New Green Card Holders. As noted in that Alert, the President proactively revoked the immigrant (green card) suspension, but allowed the non-immigrant (H-1B, H-2B, J and L-1) restrictions to remain in place. With the passage of time (and with the absence of an extension) the non-immigrant restrictions are now seemingly safely in the past.
On-Going Issues: Consulates Not Back to Normal
The elimination of the Presidential Proclamation economic travel suspensions is a significant step toward returning to the pre-Covid immigration status quo. However, there are practical hurdles at US Embassies and Consulates, given COVID closures, limited operations, case priorities and backlogs. In July 2020, the Department of State (DOS) initiated a phased in resumption of routine operations following a suspension of most visa services at US Embassies and Consulates globally in March 2020. However, visa operations capacity and capability depend upon country conditions. Since July, while there has been some notable improvement, consular operations are far from normal---with many handling emergency cases, only, or otherwise operating at a very limited capacity. As would be expected, the ongoing limited capacity issues are compounded by the additional backlogs accumulated during the past year.
DOS continues to provide updates regarding the phased-in resumption of visa services, Phased Resumption of Routine Visa Services, but can not commit to specific dates for the return to pre-COVID operations. They have established case priorities for both immigrant and non-immigrant cases, but with significant variation by country, the DOS directs applicants to check individual consular websites.
On-Going Issues: Geographic Restrictions with More Limited Exceptions
As noted in our February 25 Alert, referenced above, some of the prior administration’s travel suspensions remain in effect. The US has retained limitations on entry following travel to designated high-risk areas. These health-based geographic suspensions apply to entry to the US following travel to: Brazil, China, Iran, the UK, Ireland, European countries in the Schengen area and South Africa. Those who are subject to these suspensions are prohibited from entering the US within 14 days of travel to the designated locations.
Moreover, the DOS recently announced new standards for requesting a National Interest Exception (NIE) to these restrictions from the Schengen Area, UK and Ireland----making it significantly more difficult to qualify for an exception. Under the new standards, applicants must establish that their travel is for the purposes of providing vital support for critical infrastructure. Notably, applicants are required to justify why their planned activities require their physical presence in the US, and why alternatives (such as video conferencing, teleworking or actions by proxy) are not sufficient. National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland.
Conclusion
The termination of the nonimmigrant economically-based travel suspension is an important step toward resuming access to foreign national talent under existing immigration categories. COVID has changed the needs of many companies, including multinational companies who may need move executives, managers and key employees to meet new demands. However, while the web of restrictions is beginning to unravel, there are still challenges due to limited consular operations and ongoing geographic restrictions. The change in NIE standards has added another layer of complexity, in some cases, prohibiting travel which would have been permissible under the prior standards. Employers have opportunities to benefit from the expiration of the non-immigrant suspension, but need to engage in careful planning, while also maintaining flexibility and setting realistic timetables for immigration processes.
For more information on this issues, contact a member of Steptoe’s immigration team.