H-1B contingency planning complicated by COVID-19

23 Apr 20

UNITED STATES

Employers seeking alternative visa paths for H-1B candidates who were not selected in the cap lottery are having to consider a number of additional factors in light of the COVID-19 national emergency.

Travel restrictions and consulate closures will cause significant delays for applicants outside the United States. Currently COVID-19 travel restrictions apply to 30 countries, including China, Iran, Ireland, Schengen Area countries, and the United Kingdom. The proclamation signed by President Trump Wednesday restricts only applicants outside the U.S. who are applying for immigrant visas (i.e., permanent residency), and does not apply to those applying at U.S. consulates for temporary work visas, such as H, L, J, O, E and other visa categories classified as “nonimmigrant.”

Nevertheless, routine visa processing remains suspended at most U.S. consulates worldwide at this time. After consular operations resume, companies should anticipate ongoing delays in visa processing because of large backlogs that have developed during the closures and the likelihood that it will take time for consulates to restaff with personnel returning to their posts.

U.S. Citizenship and Immigration Services (USCIS) continues to process applications at Service Centers, but field offices and application support centers, where interviews and biometrics appointments are conducted, remain closed until at least May 3. While USCIS has introduced some temporary measures, it has declined to offer broad relief such as automatic extensions of status or postponement of filing deadlines. A lawsuit has been filed asking a court to order USCIS to suspend all deadlines and allow foreign nationals to maintain their status during the national emergency.

Employers should keep these considerations in mind when exploring alternative routes such as the following categories.

  • F-1 Optional Practical Training (OPT) is available for recent foreign graduates of U.S. institutions working in a role directly related to their field of study. The 12-month OPT may be extended an additional two years for students in STEM fields.
  • J-1 exchange visitors may be sponsored to work in the U.S. as trainees for up to 18 months or as interns for up to 12 months, but they may not fill a job for full- or part-time employees. Exchange visitors also must intend to return to their home country and some nationalities must return home for two years at the end of their J-1 status. The State Department is posting current procedures during the COVID-19 emergency here.
  • O-1 visas are an option for individuals of “extraordinary ability” in business, science, education, art or athletics. Applicants must present evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
  • L-1 intracompany transfers are for employees in managerial or specialized knowledge roles who have worked in the company’s foreign branch, affiliate, parent or subsidiary office for at least one year in the previous three years. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter.
  • Country-specific nonimmigrant visas are available for certain nationalities of countries with a bilateral agreement with the U.S. These include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens and TN classification for Canadian and Mexican nationals in designated professional categories under the United States-Mexico-Canada Agreement (formerly the North American Free Trade Agreement).
  • E-2 Treaty Investor visas may be available for nationals of countries holding a treaty with the U.S. Traditionally used by individuals and small employers, E-2 visas have been leveraged by large established companies in recent years to hire and retain executives, managers and other essential employees in the U.S., though both the employer and employee must be nationals of treaty countries. Read this BAL Perspective for more detail.

BAL Analysis: Employers should allow for significant delays and prioritize any cases that establish “essential” work in light of COVID-19 restrictions. Companies should consult with their BAL attorney for best strategies in the current environment.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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