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Employers of Visa Workers Remain in Limbo After Trump Ban’s End

April 13, 2021, 9:31 AM

Employers of temporary visa holders are unlikely to see a quick return to normal even after last month’s expiration of a Trump order barring entry to the U.S. for certain foreign workers in response to pandemic-related job loss.

Nationals from China, Brazil, South Africa, and most of Europe are still restricted. Meanwhile, embassies and consulates abroad are facing ever-growing visa processing delays. Over the last nine months, employers of high-skilled visa workers turned to remote work options or relocating employees to offices abroad and those measures will have to stay in place for the time being, attorneys say.

“It hasn’t completely sunk in that the ban has lifted, because we’re still dealing with the backlog at the embassies. It will be a while until people can get visa appointments to come to the U.S.,” said Susan Cohen, founding chair of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.'s immigration practice. “People know it’s going to be OK, but it won’t be OK yet.”

The now-expired June proclamation was issued in an effort to protect U.S. jobs for American workers, according to the Trump administration. It blocked H-1B specialty occupation guestworkers and their H-4 spouses; intracompany transferees on L visas; summer exchange J visa holders; and nonagricultural seasonal H-2B workers, with some exceptions.

Remote Work Solutions

Attitudes toward telework were drastically changed by the pandemic, with workers across the globe logging on remotely for the past year, and many visa holders were no exception.

Even though a lot of companies haven’t sent employees back to the office yet, everyone is anticipating a movement toward in-person work, Cohen said. “I think it’s still preferred by most employers that people have at least some opportunity to interact with each other in person.”

And the desire to return to a more traditional work environment isn’t only felt by employers. “There’s a strong incentive for visa holders to work in the U.S.,” Cohen added. “No matter what, the U.S. is still a magnet for people.”

Jesse Bless, director of federal litigation for the American Immigration Lawyers Association, noted that even though a large part of the work H-1B and L visa holders do can be done remotely, it doesn’t help with client relationships and it doesn’t help the U.S. tax system.

“Those people aren’t working here and paying taxes here,” said Bless, who has been a party to lawsuits to end the pandemic travel restrictions. “Ultimately it’s our country losing.”

Even before the pandemic restrictions, U.S. multinational companies historically have responded to H-1B visa worker restrictions by increasing employment in their overseas locations, said Liya Palagashvili, a professor of Economics and senior research fellow at the Mercatus Center at George Mason University, citing research from the University of Pennsylvania. “We’re seeing those trends today, anecdotally.”

“Most research on the H-1B visa find that there wasn’t a substitution effect for H-1B visa workers, meaning that American workers and foreign high-skilled workers were more complements,” according to Palagashvili.

“It’s not that any particular job that goes to a foreign worker could be filled by an American worker,” she said.

Long Waits Ahead

When the travel restrictions were issued last year, the U.S. State Department interpreted those orders to include not only a stop to entry but also to issuing visa documents. That practice has been challenged several times in court, where lawyers argue that refusing to issue visas isn’t within the agency’s authority.

“By stopping visa issuance, it makes the ban permanent,” Bless said. “They won’t process anyone who could then do a workaround,” such as quarantining and testing in a country not subject to a ban.

The lack of processing has led to the larger problem of a visa backlog, he said. “If they would just process these visas, they would be doing a service for themselves and everyone else.”

The State Department has announced it will begin to process visas that were barred under the Trump proclamation, but will do so in accordance with processing guidance that prioritizes U.S. citizens, family-based visas, fiancé visas, and certain exchange travelers ahead of temporary work visas.

Non-immigrant work visas are at the bottom of the priority list, said Cohen, the immigration attorney. “We’re in a period of time where there’s all this pent-up demand.” One solution is to request an emergency appointment, but every company in line will be trying to get one, she said.

It will be “a much more competitive situation than it would have been,” and successful requests to fast-track processing will become randomized to some extent, based on “which officer is amenable to your argument,” Cohen said.

In the meantime, employers will have to rely on the imperfect solutions put in place at the start of the pandemic. While remote work solutions are acceptable in the short-term, challenges remain, such as mismatched work hours due to varying time zones, Cohen said.

Some companies may also fear security breaches of intellectual property or other sensitive data, Palagashvili added. “The preference seems to be to have those workers in the U.S., or have U.S. workers fill those roles, but the second best option is to hire those workers remotely.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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