On Jan 13 2021 by Jordan J. Gonzalez

International Holiday Travel Causing Immigration Headache for U.S.-Based Foreign National Employees

The holiday season – everyone’s favorite time of year. Family and friends travel far and near, gathering to observe the religious holidays, exchange presents, and ring in the new year. But in 2020, a year marked by a global pandemic, travelers had to tread carefully. Besides CDC warnings of the health risks associated with holiday travel, many foreign nationals located inside the U.S. had to carefully navigate a myriad of unprecedentedly restrictive travel bans and immigration restrictions. For some who traveled abroad, for personal reasons or otherwise, they are now facing incredible obstacles in returning to the U.S, causing massive disruptions to their lives and the operations of their employers.

Over the course of 2020, the Trump Administration leveraged the COVID-19 pandemic to impede travel into the United States by foreign nationals as part of his established agenda to significantly reduce legal immigration to the U.S. These impediments the president created can be categorized into three types: region-specific travel bans, person-specific travel bans, and administrative slowdowns. Each of these play an enormous role in limiting access to the immigration system.

The first round of impediments came in the form of administrative slowdowns. In late 2019, the world saw many U.S. embassies and consular offices abroad to close their doors. The embassies and consulates are organized under the Department of State, which in turn, report to the president. They are entrusted with a multitude of responsibilities including, importantly, administering the distribution of visas. Every foreign national who wants to enter the U.S. must have a current nonimmigrant or immigrant visa, with some exceptions for citizens of Canada and visitors from visa-waiver countries. Outside these exceptions, without the consular offices, no foreign national outside the U.S. has been able to enter the country. In limited cases, consular offices would take appointments, though visa applicants had to show extraordinary circumstances or cleanly fit into very niche situations. The ban’s impact was on individuals located abroad with no visa options and unable to enter the U.S. This group composes a large part of the individuals who enter the U.S. on an annual basis with jobs, families, and other business in the U.S.

Next came the region-specific travel bans. In addition to the administrative slowdowns, the Trump administration began issuing executive orders banning foreign nationals who had passed through certain countries from entering the U.S. On January 31, 2020, foreign nationals traveling from or transiting through China were banned from entering the U.S., subject to certain exceptions for green card holders, close relatives of U.S. citizens, and other highly niche situations. On February 29, 2020, travel from Iran was banned, subject to the same exceptions for China. On March 11, 2020, similar bans and exceptions were put into place for the Schengen Region. Three days later, an identical ban for those traveling from the UK and Northern Ireland was issued. Considering that a very significant portion of international travel to the U.S. comes from these regions, several were U.S. industries significantly and negatively impacted.

Finally came the person-specific bans, which arguably caused the most disruption to U.S. immigration law in 2020. Through a series of Executive Orders issued throughout the spring and summer of 2020, President Trump, justifying his actions on protecting the U.S. economy, barred non-immediate family members of U.S. citizens and Lawful Permanent Residents (green card holders) from reuniting with their families in the U.S. His administration also prohibited people from entering on H, L, and certain J visas unless they had a visa before the date of the travel ban, June 22, 2020, or met certain niche exceptions. The H, L, and J nonimmigrant visa programs are some of the most highly utilized visas for professional workers; restricting access to these categories limited U.S. employers’ access to the talent they needed to thrive.

There have been countless studies on the corrosive effects these bans have had on the U.S. economy, studies which have been instrumental in the federal court litigation challenging these the Trump administration’s immigration policies. On October 1, 2020, for example, Judge Jeffery S. White of the U.S. District Court of the Northern District of California, relying on the economic studies provided by a group of plaintiffs, halted President Trump’s H, L, J travel ban applicability to members of the U.S. Chamber of Commerce and National Association of Manufacturers, calling his actions “monarchical,” “completely disregard[ful] [of] both the economic reality and the preexisting statutory framework,” and “without any consideration of the impact on American firms and their business planning.” Still, it is widely reported that the Department of State, which remains under the thumb of Secretary Mike Pompeo and President Trump, has failed to respect the injunction and continues to arbitrarily withhold issuance of H, L, and J visas.

It is against this background that some U.S.-based foreign national workers have departed the U.S. during the holiday season only to find themselves stuck. In some cases, these highly-trained workers took the travel risk to end their prolonged separation from their family and friends in their home country. Meanwhile, their U.S. employers, whether their employees’ choices to depart were informed or not, are incurring great disruption in their operations. U.S. employers with foreign national employees stuck abroad are placed in the difficult position of continuing the employment remotely, incurring another set of payroll costs and international taxes, and operational costs associated with time differences, or termination — an option fraught with its own issues.

On December 31, 2020, President Trump provided a departing holiday gift: he extended all the person-specific travel bans until March 31, 2021. The world is now looking to the Biden Administration, patiently waiting to see whether and when he will rescind any of the impediments to the immigration system passed during the course of 2020.  

 

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 January 13, 2021 edition of the 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.