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India Travel Ban Means U.S. Visa Workers Remain Stuck Abroad

May 3, 2021, 8:26 PM

Travel restrictions for India that take effect at midnight will disrupt not only temporary work visa holders who are currently abroad, but also the U.S. businesses who employ them.

The Biden administration issued a proclamation Friday that nonimmigrant travelers from India won’t be allowed entry to the U.S. due to the “widespread, ongoing person-to-person transmission of SARS-CoV-2, the virus that causes COVID-19,” noting that the World Health Organization has reported that the country has had more than 18,375,000 confirmed cases of Covid-19.

Employers of H-1B specialty occupation visa workers, where Indian nationals made up more than 67% of registrants in the 2020 visa lottery, will likely bear the brunt of any employees stuck abroad—whether because of family emergencies or in the process of renewing their visas—for the foreseeable future.

“Businesses were just starting to rev back up in 2021 to bring individuals over who were previously banned by the visa travel restrictions” enacted by the Trump administration last June, said immigration attorney Nandini Nair, a partner at Greenspoon Marder LLP in Edison, N.J.

“So this is a further hit to U.S. businesses because these are current employees who are stuck getting their visas renewed, and individuals put on hold in 2020 can’t come now either,” she said.

Consulates ‘at a Stop’

H-1B and other visa holders previously were barred from entering the U.S. under a proclamation issued by the Trump administration last June. Those restrictions had just lifted on March 31.

As the pandemic has worsened in India, visa holders are facing the “impossible choice” of going back to be with their families during a potentially tragic event and risk not being able to return to the U.S., or stay in the U.S. and watch it from afar, said Amy Peck, a principal in the Omaha, Neb., office of management-side firm Jackson Lewis P.C. “It’s heart-wrenching.”

Exemptions to the regional travel ban include lawful permanent residents, immediate family members of U.S. citizens, and visa holders vital to “critical infrastructure” in the U.S.

But even when someone may be permitted to travel, all efforts can come to a standstill if they’re waiting on documents from the U.S. State Department. Consulates in the region already were working with staffing shortages and battling growing processing backlogs, made even worse by the most recent outbreaks.

“Many foreign nationals in the U.S. who have gone to India during this time, most have traveled for visa appointments to renew or get their visa issued. The consulates are at a stop at this time, and there are extensive and significant backlogs,” Nair said. “Regardless of the exemption, they still need that visa to be stamped for re-entry.”

A State Department spokesman said in a statement that in light of the India proclamation and related virus concerns, “all routine visa appointments, both in-person and interview waiver, at U.S. Embassy New Delhi and the consulates in Chennai, Hyderabad, Kolkata, and Mumbai are cancelled until further notice.” Emergency services for U.S. citizens, however, will continue, the agency said.

“The pandemic continues to severely impact the number of visas our embassies and consulates abroad are able to process,” the agency said. “We are making significant efforts with constrained resources to safely return to pre-pandemic workload levels, but are unable to provide a specific date for when this will happen at each post.”

Accommodations, Challenges

For U.S. businesses, accommodations previously in place during the June restrictions could continue to work. But now logistics complicate getting work done, attorneys said.

“I think by and large employers are being extremely understanding of this, and doing everything they can to accommodate employees within the bounds of law, but that said, there are significant consequences to employers if these workers are leaving for India and unable to come back,” Peck said.

Employers also are concerned about privacy issues if an employee is working from India and handling sensitive data; if the length of the remote work arrangement creates a tax presence in India for a corporation that didn’t previously have one; and whether an employee can feasibly work from a different time zone, she said.

The most recent regional restrictions are “creating bad decision points for many companies where they have talent stuck outside the company with no real solution,” said Jorge Lopez, chair of Littler Mendelson’s Global Mobility and Immigration Practice Group.

Companies pursue visa workers in specialty occupations because they have the skill sets not easily found in the labor market, Lopez said. “If you lose that talent, it’s not like you have five or 15 people behind them ready to fill the role.”

Lopez said that pandemic travel restrictions that are likely to endure will create “a longer-term staffing issue moving forward.”

Overall, “people want to keep their jobs, employers want to retain employees,” Peck said. “But there are these cataclysmic and really important situations going on with people’s families.”

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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