After much speculation, the Biden Administration has opted to allow former President Trump’s nonimmigrant visa ban to expire on March 31. The ban was originally issued in an Executive Order in June 2020 and primarily affected the ability of those in H-1B, L-1, or J-1 status to obtain a visa at a U.S Embassy abroad. While the Trump Administration’s initial goal of reducing legal immigration by at least 50% was stymied in Congress, the COVID-19 pandemic provided the Administration with the pretext needed to enact its visa ban. In the waning days of his Administration, President Trump extended the ban until the end of March 2021 (it was set to expire in December 2020) and its end represents some restored hope for the global talent that is integral to restoring the fabric of our economy.
Despite the end of the visa ban, substantial headwinds still exist for those needing to travel internationally. Just as the pandemic is constantly changing, the still applicable travel bans, quarantine, and COVID testing requirements are mind-numbingly complex and remain highly fluid. It is important to underscore that despite the end of the visa ban, President Biden has continued the applicable country travel bans that affect individuals located in the Schengen Area, U.K., Ireland, China, Brazil, South Africa, and Iran, pursuant to Presidential Proclamation 10043. These individuals are unable to travel without obtaining a National Interest Exception (“NIE”) from a U.S. Embassy abroad. In addition, most U.S. Embassies still have limited operations and have a limited staff. As such, visa appointments at many consulates are not available until later this Fall and some delays persist until early 2022.
National Interest Exception Standard—How Can a Worker Qualify?
If impacted by the country bans, a worker can wait until the end of the year or later for a potential visa appointment or apply for an NIE. The Biden Administration revoked the initial August 2020 Department of State guidance for applying for an exception and instituted a new standard. In order to qualify for an NIE, the applicant must be providing vital support to a sector of critical infrastructure. The Department of Homeland Security defines sixteen critical infrastructure areas, and they encompass areas including chemical, energy, financial services, healthcare, and information technology, to name a few. Of course, what constitutes providing “vital support” is not entirely clear, nevertheless, recent experiences demonstrate that NIE’s can be attained to accommodate travel that is urgent and compelling in nature.
The key to a successful NIE request lies in cogently communicating the reasons for travel along with the area of critical infrastructure that would benefit from the applicant’s earlier arrival into the U.S. Of course, it is also wise to explain the potential harm to the embassy if the NIE is denied. One highly important factor that must be considered is the issue of why the applicant’s physical presence in the U.S. is required. As our world is now adapted to remote work, any successful NIE request must explain why alternatives such as video conferencing, teleworking, or actions performed by others who are already in the U.S., would not be sufficient to meet business needs.
It is also important to note that individuals who currently have valid visas in the geographic areas subject to Presidential Proclamation 10043 are not exempt from the ban. Those applicants would either need to contact a U.S. Embassy for an NIE exception or spend fourteen days in a non-banned country before they would be able to travel to the U.S.
Is Working Abroad a Temporary Solution?
As we have been thrust into the revolution of remote working environments, many employers have fallen into the trap of assuming that employees can simply work for a U.S. entity abroad or assume their job duties in a different country. While these may worthwhile options to consider (especially for employees who may not qualify for an NIE exception), it should be noted that such decisions should not be made in a vacuum. Rather, there can certainly be relevant global immigration visa concerns that must be addressed, along with a potential impact on employee benefits. One of the most critical factors to assess is potential tax/substantial presence issues and it is likely wise to have immigration counsel working in conjunction with appropriate international tax advisors, to ensure that tax issues will not create unwelcome surprises down the road.
There is no doubt that the COVID-19 pandemic has turned the world upside down. This is especially true for our international workforce that has always made lasting contributions to our nation’s strength and success. While we all hope for brighter days ahead in the very near future, the pandemic has taken the complex task of managing an international workforce and made it even more of a challenge. In order to meet the challenges ahead and ultimately thrive, it is critically important to understand the constantly changing immigration legal landscape and to be prepared on all fronts.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the April 14, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
