COVID-19 and foreign national workers in The United States

Over the last three months, stay-at-home orders have become commonplace around the United States due to the COVID-19 pandemic. For foreign national workers who are employed by multinational corporations and businesses, these orders have practically broadened into “stay-in-country” directives.

The visa system

The United States boasts the most intricate immigration system in the world and is home to an alphabet soup of temporary visas, which are available to foreign nationals depending on their circumstances. For example, the H-1B visa is reserved for foreign nationals who will be employed in “specialty occupations,” or positions that normally require a Bachelor’s degree or higher; the L-1 visa is issued to intra-company transfers who will perform work at a related U.S. parent, subsidiary or affiliate company; and the TN visa is dedicated to Canadian and Mexican nationals who will work in a specific professional position. While these visas primarily bestow lawful work authorization and status to foreign nationals in the United States, they also serve the dual purpose of allowing foreign nationals to travel internationally – whether they are visiting their home countries or for business purposes.

Presidential Proclamation

Citing high domestic unemployment caused by the pandemic, President Trump recently issued a Presidential Proclamation suspending the entry of foreign nationals who present a risk to the U.S. labor market following the Coronavirus outbreak on June 22, 2020. The order continued and expanded upon a previous order (issued on April 22, 2020) that temporarily suspended the entry of certain immigrants and lawful permanent residents for a period of 60 days.

The latest proclamation maintained the initial ban placed on certain immigrants and lawful permanent residents and additionally restricted the entry of certain nonimmigrant or temporary visa categories (H-1B, H-2B, J-1 and L-1 visas). The combination of these two orders was intended to primarily impact those outside of the United States. However, it has significantly impacted the mobility of foreign national employees in the United States.

In addition to the latest proclamations, other immigration-specific measures have already been implemented due to the pandemic, including the following:

• The United States borders with Canada and Mexico are closed for non-essential travellers until at least July 21, 2020. This means Canadian and Mexican nationals are not allowed to travel to and from the U.S. unless immigration officials deem them an “essential traveller.”
• Individuals who have spent time in China, Iran, Brazil, the Schengen Area of Europe, the United Kingdom, or Ireland in the past 14 days are banned from entering the U.S.

Immigration benefits

The government agencies responsible for immigration benefits have largely been closed to the public during the pandemic period as well. Since March 20, 2020, the U.S. Department of State, which is the agency responsible for issuing immigrant and nonimmigrant visas have cancelled routine appointments at their consular locations worldwide and have continued to do so through the month of July. The U.S. Citizenship and Immigration Services, which is the benefit-giving agency for immigration matters within the United States, has re-opened some of their offices for interviews and appointments but they are not operating at full capacity.

With the issuance of these presidential proclamations, the continued uncertainty of the pandemic, high domestic unemployment and the continuing nature of immigration restrictions, foreign national workers have practically been forced to remain in the United States during the pandemic.

Lay-offs and furlough

Exacerbating this travel dilemma, companies have considered and partaken in laying off and furloughing their workforce. When foreign workers are laid off, an additional layer of concern arises because immigration law requires individuals to return to their home country upon termination of work with a minimal grace period. However, international flights are just coming back online and some countries, such as India, are not even allowing their citizens to re-enter unless under emergency situations. For those affected foreign nationals, they are forced to file last-minute filings to keep them in a temporary status in the United States.

Practically, most immigration firms and providers are advising their clients to stay in the United States and to temporarily refrain from traveling internationally until the pandemic is resolved and/or immigration restrictions are lifted at the end of 2020. The two appear to be mutually inclusive.

It has been, and remains, our privilege to work with Jackson Walker and with Globalaw on the ground in many of our 50 country locations. Our sincerest thanks to Sang Shin in Jackson Walker’s Houston office for this article and, if you would like to find out more about our comprehensive range of international expansion services, including human resources, tax, accounting and payroll, feel free to reach out to us at info@briarsgroup.com.