Nonimmigrant Visa Ban Expires: Has International Travel Turned The COVID Corner? - Immigration - United States - Mondaq News Alerts

Nonimmigrant Visa Ban Expires: Has International Travel Turned The COVID Corner? - Immigration - United States - Mondaq News Alerts

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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

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

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.

Originally Published by The Legal Intelligencer© 2021
ALM Media Properties, LLC.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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