Temporary work visa suspensions: what employers need to know

lab technicians working

In the latest government response to COVID-19, an executive order went into effect on June 22, extending the existing green card ban and issuing temporary work visa suspensions through the end 2020. The order applies to H-1B visas, H-2B visas, L-1 visas, and certain J-1 visas.

This work visa suspension doesn’t impact every industry, but there are many employers who will need to take these new restrictions into consideration as they plan their hiring over the second half of the year.

Here’s what employers need to know:

Who is included in the work visa restrictions?

The order builds on restrictions that were implemented earlier this year in April, which temporarily halted visas for certain family members of green card holders for 60 days. In addition to extending those earlier restrictions through Dec. 31, 2020, the latest proclamation also includes freezing new work visas for:

  • H-1B speciality workers: Those with a bachelor’s degree or higher who work in specialty occupations that require theoretical or technical expertise in fields, such as information technology, engineering, finance, accounting, mathematics, science, medical etc.
  • H-2B non-agricultural workers: Temporary workers at any skill level not working in the agricultural field who fill seasonal, intermittent, supplemental, or one-time roles.
  • Non-physician J-1 visas: Exchange visitors who take part in work-and-study-based programs, excluding high school students and those in the medical field.
  • L-1 intracompany transfers: Executives, managers, and employees with specialized skills who transfer from a foreign company to a U.S. office, subsidiary, or affiliated company to perform a temporary service.

Dependent family members are also included in the above restrictions.

Who is exempt from the work visa restrictions?

Healthcare workers and researchers combating COVID-19, university professors, and food processing workers in the agriculture and seafood industries are exempt from these suspensions. These exemptions “should cover people involved in meatpacking and processing plants, as well as all aspects of the food supply chain from production to transportation and logistics,” says Rebecca Bernhard, a partner at the international law firm Dorsey & Whitney. Additionally, she says, “Most physicians, nurses, and other medical personnel should still be able to obtain visas.”

Along with those exemptions, Bernhard says that those who won this year’s H-1B lottery and who are waiting for their H-1B status to take effect on October 1 can breathe a sigh of relief.  “The vast majority of these people are not affected by the new executive order, since most people in this situation are already in the United States and will not need to travel abroad to obtain a visa,” she says.

What these restrictions mean for employers

The work visa restrictions will likely affect every employer differently. It’s important to keep in mind, though, that these restrictions are for visas and do not affect the status of foreign workers currently in the U.S.

“One thing that is often lost in these discussions is the distinction between a visa and a status,” Bernhard says. “A visa is merely an entry document that is stamped into a passport – often called the visa stamp. A visa status is a legal right to be and work in the United States. This executive order stops the Department of State from issuing certain new work visas (to enter the U.S.), but it does not cancel or affect the status of foreign workers already in the United States.”

However, under these restrictions, many employers looking to hire will have to limit their search to American workers. This means that H1-B visas won’t be issued for foreign coders or engineers. Hotels and amusement parks can’t hire seasonal workers from abroad this summer. International companies won’t be allowed to transfer employees into their U.S. offices, and foreigners wishing to work as camp counselors or interns won’t be granted J-1 visas.

Those in favor of the restrictions believe these suspensions will help unemployed U.S. workers find jobs. In total, the White House projects that 525,000 American jobs will be saved or created by the executive order.

Meanwhile, the New York Times reports that these restrictions are “fiercely opposed by business leaders, who say it will block their ability to recruit critically needed workers from countries overseas for jobs that Americans are not willing to do or are not capable of performing.” A number of CEOs, including Tesla’s Elon Musk and Google’s Sundar Pichai, took to Twitter to express these concerns that the talent pool may be much more shallow compared to what they might normally experience in a global economy.

Further immigration restrictions to be expected

 While the effects of these temporary work visa suspensions have yet to be felt at its onset, it will be important to monitor as the situation evolves in the months to come. Looking ahead to the not-so-distant future, employers can expect to see even more restrictions implemented.

“The order hints at more immigration restrictions to come, although additional restrictions will not likely be issued through an executive order,” Bernhard says. “Further policy is likely to be issued through the federal rulemaking process which could take several months. President Trump has made it clear that he sees restricting immigration as a key campaign issue, so it is likely that as the election draws closer we will see further action on these issues.”

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