December 1, 2020

Volume X, Number 336

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November 30, 2020

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The COVID-19 Hits Keep Coming – Certain Work Visas Halted Until 2021

Last week, President Trump signed a proclamation suspending the issuance of new H-1B, H-2B, J and L visas through December 31, 2020 (description of the types of visas are included below).  The proclamation, which took effect on June 24, also limits the entry of any non-U.S. citizen or national into the U.S. that was outside the U.S. on June 24, did not have a nonimmigrant visa valid on June 24, and didn’t have an official travel document (other than a visa) valid on June 24. 

In taking this action, the proclamation extends the 60-day temporary restrictions originally issued on April 22 to address the COVID-19 pandemic, except for a few changes (which are noted below).  This means businesses and industries that rely on immigrant work visas that were suspended need to be prepared or they may be unable to fill their anticipated labor needs.

So what are the categories of visas suspended?

  • H-1B:applies to temporary workers with specialized knowledge/skill.The job categories typical for H-1B visas are IT/computer programming, university-level professors/teachers, engineers, and health care workers, among others.

  • H-2B: applies to temporary low-skilled or semi-skilled workers that engage in seasonal work, intermittent work or peak needs of a nonagricultural nature.The job categories typical for H-2B are sports coaches, landscapers/groundskeepers, housekeepers, construction laborers, restaurant servers and cooks, and au pairs, among others.

  • J: applies to individuals approved to participate in work- and study-based exchange programs (J1 visas) and spouses and dependents of J1 visitors who accompany them to the U.S.

  • L: applies to intracompany transferees of executives, managers or employees with specialized skills that work outside the U.S.

What are the exceptions to the suspensions and restrictions to entry?

  • Lawful permanent residents of the U.S.

  • Any non-U.S. citizen or national (i.e., alien) who is a spouse or child of a U.S. citizen.

  • Any non-U.S. citizen or national (i.e., alien) seeking to provide temporary labor or services essential to the U.S. food supply chain.(Thus, H2A visa seekers – temporary agricultural workers - are not impacted.)

  • Any non-U.S. citizen or national (i.e., alien) whose entry would be in the national interest as determined by the secretaries of State or Homeland Security.

Notably, some exceptions are included in the April proclamation.  Thus, E Visas, available to qualified investors, treaty traders and specialty occupation workers from Australia, remain available.  Also exempt from the visa ban proclamation are any medical personnel performing work to combat COVID-19.  Complicating the situation is the fact that all American consular offices remain closed. 

In sum, employers that regularly rely on temporary workers with H-1B, H-2B, J or L visas or that have been planning on using such workers during the 2020 calendar year should confirm what, if any, impact the president’s June 22 proclamation will have on their workforce and operations.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 181
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About this Author

Leonard V. Feigel, Employment Litigation Attorney, Foley Lardner Law Firm
Special Counsel

Leonard V. Feigel is an associate and litigation lawyer with Foley & Lardner LLP, where he advises employers in all aspects of employment law including litigation. Mr. Feigel has experience representing employers before state and federal courts and administrative agencies such as the Equal Employment Opportunity Commission, Occupational Safety and Health Administration (OSHA), Department of Labor and National Labor Relations Board. He has handled cases relating to the Fair Labor Standards Act (FLSA), state and federal employment discrimination laws, including Title...

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