The Impact of Covid-19 on US Immigration →

Since the global pandemic and lockdown, immigration has clearly been impacted by Covid-19. The United States (US) were one of the first to go into lockdown and have experienced the highest rates of covid-related deaths. The Trump Administration responded by closing their borders, banning travellers of certain countries and finally (and most recently), by suspending certain US visa categories.

As early as the 31st January, President Trump announced the suspension of entry into the US of foreign nationals who “pose a risk of transmitting the coronavirus.” This was aimed at the Chinese and those that had recently travelled to China. On 29th February, he further barred the entry of foreign citizens who had travelled to Iran within the last 14 days. On 11th March, it was announced that foreign citizens who had visited Europe within the last 14 days, were barred from entry to the US. Initially this did not include the United Kingdom (UK) and Ireland. It only took three days for the US to announce that this was extended to the UK and Ireland, on 14th March.

On 18th March, the US-Canadian border was temporarily closed to non-essential traffic and on 20th March, the US-Mexican border was also temporarily closed. In Trump's “National Emergency” Proclamation re: Covid-19 on 13th March, he specifically referred to the bar on entry to the US of foreign nationals who had travelled to China (excluding the Special Administrative Regions of Hong Kong and Macau), Iran, the Schengen Area, the UK (excluding overseas territories outside of Europe), and Ireland. On 24th May, Trump issued a proclamation extending the bar on entry to those who had travelled to Brazil.

Of most significance were the later proclamations on 22nd April and 22nd June. They refer to how American livelihoods have been significantly disrupted. On 22nd April, the proclamation refers to 22 million Americans filing for unemployment..It is here, that Trump restricts Lawful Permanent Residents (green card holders), from entering the US. It is insinuated, that their “open market” employment authorization documents, are a threat to US citizen jobs. Those individuals who were outside of the US when their employment-based green card was being processed, or even approved, were directly impacted. It was initially put in place for 60 days, but was extended further on 22nd June, until at least 31st December, 2020. The most shocking new revelation in the latest proclamation, was that certain non-immigrant visas had also been suspended:

• L-1 Intra-Company Transfer Visas

• H-1B Specialty Occupations and Fashion Model Visas

• H-2B Temporary Worker Visas

• J Visas (Interns, Trainees, Teachers, Camp Counsellors, Au Pairs, Summer-Work Travel Program)

Whilst this did not cancel valid visas, it meant that pending applications and even approved petitions were impacted. Our firm processes both non-immigrant and immigrant visas. In regards to business visas, we predominantly work with UK-based SME's seeking visas such as the L-1 Intra-Company Transfer visa, for employees of that company. This came as a shock to both our firm and clients who have to anxiously wait for the next update. Even if general travel to the US commences by January, will our client's with pending or approved L-1 petitions, be able to obtain their visa and travel to the US on this visa early next year? Will President Trump extend the suspension (if re-elected) and hold off on allowing foreign workers into the US?

It is an uncertain time for all foreign companies who have US-based offices with foreign workers on US visas. Not only are we faced with unprecedented times, but we also have a President who is trying to appease the right wing America, a mere four months away from election. It’s more than just Covid-19. It’s about American jobs in general.

What does this mean for foreign employees that are based in the US on visas, or foreign employees they need in the US? Are there other visa options?

There is no way of knowing whether the proclamation will be extended, but as a company or individual, you may have another visa option, such as an E-1 or E-2 visa.

If you wish to discuss this with an immigration attorney at our firm. Please visit our website on www.baimmigrationlaw.com

+44(0)203 102 7966

info@baimmigrationlaw.com

A New Standard for National Interest Waivers : An Entrepreneur's Benefit

What is a National Interest Waiver? 

Under the second preference of employment-based immigrant visa category, a NIW is a waiver of the job offer requirement - and therefore the labor certification - because it is in the "national interest". The waiver is only available for professionals with an advanced degree (such as an Engineer with a masters degree) or those with an exceptional ability in the sciences, arts or business. This would allow an entrepreneur to self petition under the second preference category. 

The New Standard: Matter of Dhanasar 

On December 27, 2016, the AAO issued Matter of Dhanasar which should make it easier for entrepreneurs to qualify for the National Interest Waiver, though its effectiveness will be determined by whether USCIS adjudicators interpret the new standard as intended. The decision overturns a 1998 decision (NYSDOT), and has three parts: 

1) The “foreign national’s proposed endeavor has both substantial merit and national importance”; 

2) The “foreign national is well positioned to advance the proposed endeavor”; and 

3) The United States would benefit “on balance” if the job offer and permanent labor certification requirements are waived. 

If these requirements are met, USCIS may approve the NIW as a matter of discretion. 

The new standard notes that a petitioner's intended work can be in the national interest even when it is limited to a certain geographic location (prong one). Under prong two, it examines the "potential prospective impact" of the foreign national's intended work – as opposed to limiting the consideration primarily to the past achievements as a measure of future benefits often previously used.  The decision recognizes that many endeavors and entrepreneurial pursuits may ultimately fail, "despite an intelligent plan and competent execution". Dhanasar directly rejects that a foreign national must prove they are more likely than not to succeed.  

The new third prong also removes the need for a showing of harm to the national interest if the petitioner is not granted a waiver, or a comparison of US workers in the petitioner's field. This makes the waiver standard much friendlier to entrepreneurs and the self-employed. 

Other Options for Entrepreneurs 

The National Interest Waiver option may benefit entrepreneurs more so than it had done in the past. But what if it does not seem right for you? Many entrepreneurs enter the United States through nonimmigrant E or L-1A visa categories or the EB-5 investor immigrant program. Recent proposals to the EB-5 program mean that the investment minimums are likely set to rise this year, creating a further financial barrier to prospective EB-5 clients. 

USCIS also recently finalised the Entrepreneur Parole Program, though the rule puts many limitations (including funding restrictions) on the entrepreneur.  

If you would like to speak to an experienced US Immigration Lawyer about a National Interest Waiver or other entrepreneur visa options, please email us on info@baimmigrationlaw.com. 

DHS Proposed Rule : Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On December 31, 2015, the Department of Homeland Security proposed amendments to its regulations related to certain employment-based immigrant and nonimmigrant visa programs. Many of the changes are aimed at improving the ability of US employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while at the same time increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers or pursue other employment options.

DHS proposes to amend its regulations:

1 - consistent with worker portability and other provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).

2 - governing certain employment-based immigrant and nonimmigrant visa programs to provide additional stability and flexibility to employers and workers in those programs. This includes improving job portability for certain beneficiaries of approved employment-based immigrant visa petitions by limiting the grounds for automatic revocation of petition approval; further enhance job portability for such beneficiaries by increasing their ability to retain their priority dates for use with subsequently approved employment-based immigrant visa petitions; establish or extend grace periods for certain high-skilled nonimmigrant workers; and provide additional stability and flexibility to certain high-skilled workers by allowing those who are working in the US in certain nonimmigrant statuses, are the beneficiaries of approved employment-based immigrant visa petitions, are subject to immigrant visa backlogs, and demonstrate compelling circumstances to independently apply for employment authorization for a limited period.

3 - governing the processing of applications for employment authorization to minimize the risk of any gaps in authorization. These changes would provide for the automatic extension of the validity of certain Employment Authorization Documents for an interim period upon the timely filing of an application to renew such documents.

The comment period for the proposed rule ends on February 29, 2016.