Navigating US immigration during COVID-19 and beyond

This year has seen significant shifts in US immigration policy. The increased prominence of executive action in the immigration arena - heightened by the pandemic - has sparked a range of restrictions and limitations which will likely last into 2021.

Beginning in January, a series of presidential proclamations curtailed direct travel to the US from China, Iran, the 26 countries of the Schengen zone, the UK, Ireland, and Brazil. These were followed by orders suspending issuance of new permanent (immigrant) visas and certain temporary (nonimmigrant) visas to protect the American labour market.

These restrictions, coupled with the slow resumption of visa services, have resulted in operational insecurity for businesses - with concerns including:

• Uncertainty around obtaining new visa endorsements for existing US-based assignees;
• The apparent inability to apply for new L-1 (intra-company transfer) or H-1B (specialty occupation) visa endorsements;
• Limitations on business travel from restricted countries;
• Difficulty around travel back to the US by existing visa holders physically present in restricted countries.

Despite shifting policies and current delays, mechanisms do exist to help businesses effectively manage the current situation and build mobility back.

Businesses should, in addition, use this time of limited travel to plan for - and implement - flexible and robust immigration strategies which can help ensure a streamlined and cost-effective visa framework as processing gradually resumes.

Immediate solutions

In the short term, businesses can consider a number of possible options. These include:

• National interest exceptions to point-of-origin travel restrictions for existing L-1 and H-1B visa holders – as well as for key employees with a significant economic impact;
• Travel from non-restricted countries;
• National interest exceptions to new visa issuance for L-1 and H-1B renewals and for senior executives or vital specialised knowledge professionals at employers in critical industry sectors;
• Alternative, non-restricted visa types (such as the O-1, E-2, TN, E-3, and H-1B1);
• Expedited appointment requests

While procedures do vary, and adjudication is heavily case-specific, these options can enable international travel for both current and new assignees.

Planning for the future

This period of lower volumes also presents an ideal time for businesses to take stock of their existing US immigration practices. They can – and should – use this time to position themselves effectively, and may wish to consider:

• Developing strategies and systems to ensure ongoing compliance in the context of increased remote working;
• Exploring permanent residence for senior executives and managers;
• Applying for (or amending and updating) a blanket L-1 approval;
• Assessing eligibility for E-1 or E-2 status as a Treaty Trader or Treaty Investor

Conclusion

While this is a challenging time in US immigration, businesses should bear in mind that not only can it be managed so as to minimise disruption, but it can also be seen as a golden opportunity for effective future planning. The time to act is now!

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