On April 22, 2020, President Trump signed into law a temporary immigration ban, intended to last for 60 days. The purpose of the legislation was to ensure U.S. workers were prioritized as the economy reopens after being ravaged by the COVID-19 pandemic. However, the decree included a number of exceptions, including the immediate family members of U.S. citizens and residents and investors in the EB-5 Immigrant Investor Program.
On June 22, 2020, Trump extended the immigration ban, effective June 24. Citing the belief that economic recovery in the United States will take several months, Trump has prolonged the ban dramatically, with the United States now disallowing immigrants until the end of 2020. The proclamation was also extended to include holders of non immigrant visas H-1B, H-2B, L, and J. Any would-be immigrants who do not have a valid visa or travel document other than a visa by June 24, 2020, will be ineligible to enter the United States until the end of 2020, unless they also fall into one of the exception categories. Any foreign nationals already living in the United States under a work visa remain unaffected by the decree.
Exemptions to the Immigration Ban
Foreign nationals with permanent resident status are always permitted to enter the United States, as are the spouses of U.S. citizens or residents. Similarly, the unmarried children younger than 21 of any U.S. citizen or resident are always welcome in the country. In the fight against COVID-19, physicians, nurses, and other health care professionals are also exempt from the extended immigration ban. Additionally, EB-5 investors can breathe a sigh of relief, because they are once again exempt from the immigration ban, despite an open letter to President Trump from May 7 pressuring Trump to extend the ban to EB-5 investors.
Of course, EB-5 investors may face additional obstacles in the chaotic year of 2020. Any travel restrictions in place for an investor override the immigration ban exemption, so some EB-5 investors will still be unable to enter the United States. Investors must also obtain their U.S. green card before relocating to the United States, but the temporary suspension of routine visa services at U.S. embassies and consulates has halted the EB-5 process for investors overseas. Thus, while immigration to the United States is technically allowed for EB-5 investors, it is infeasible in practical terms for many investors.
Why the EB-5 Program Is the Best Choice for U.S. Immigration
Beyond the obvious advantage of the EB-5 program in the face of the pandemic, the EB-5 program offers numerous advantages over popular non immigrant visas such as the H-1B or L visa. To obtain such a visa, an applicant must locate an employer willing to sponsor them, which is easier said than done, and even then, acceptance is not guaranteed—applicants must compete in the annual H-1B lottery, since demand is too high. Those lucky enough to be accepted then face tough restrictions once in the United States, able to perform work activities only for the employer who sponsored them, and are generally only allowed to stay in the United States for a temporary period.
Conversely, EB-5 investors enjoy the freedoms the United States is known for. As green card holders, they have permanent resident status, which allows them to live, work, study, and travel freely anywhere in the United States. Permanent residents can also freely travel abroad and will always be welcomed back in the country simply by presenting their U.S. green card. An EB-5 visa allows an investor and their spouse and unmarried children younger than 21 to live in the United States indefinitely, enjoying almost all of the same rights and freedoms as U.S. citizens.
The EB-5 program is also generally easier for applicants, as long as they have the necessary investment capital. The key requirements of the EB-5 program are an investment of the appropriate amount—either $1.8 million or $900,000, depending on whether the chosen project is in a targeted employment area (TEA)—and proof of the lawful sources of the EB-5 investment funds. Once an investor’s I-526 petition is approved, they may apply for an EB-5 visa and are granted conditional permanent resident status for two years. During this two-year period, they must keep their investment capital at risk, and before their conditional permanent resident status expires, they must file an I-829 petition to prove their investment created at least 10 new full-time jobs for U.S. workers. Upon approval of the I-829, they and their immediate faily members can enjoy U.S. permanent resident status—it’s as simple as that.
The current administration signed a new executive order on June 22, 2020, temporarily halting work visas like the H-1B visa program for highly-skilled workers in order to recover from the coronavirus pandemic. Immigration attorneys are working to determine what the order might mean for clients now out of the country.
Current Exceptions:
According to the New Executive Order, Visa-holders (H1B, J1, L1) who are already living in the U.S. and those applicants who have already received a visa are exempt from the ban. Their dependents (such as H2 Visa Holders, L2 Visa holders) are allowed if the primary holders are already in the country.
H1B extension, transfer, amendment, change of status for people who are already in the US will not be affected. Limits are now being imposed on IT companies hiring as third party employers. Their H1Bs will have to be approved via the LCAs filed with the Department of Labor.
Workers on H4 EAD and L2 EAD are not affected. In addition, there will be limits on third party IT company hiring. So, people working in TCS, HCL, Infosys, and similar companies should be ready to face it. This will be done via DOL LCA filing approvals.
The current restrictions are intended to last until the end of 2020, which might disrupt the government’s typical process of awarding new visas at the beginning of October.
The current move is expected to decrease unemployment in the United States. Roughly around 525,000 people will be unable to enter the country as a result of the expanded travel restrictions including 170,000 green card holders who were barred from entering the U.S.
The technology industry has relied on H-1B visas to hire foreign talent for decades now, particularly in the fields of science and engineering. However, Healthcare workers, coronavirus researchers, food supply workers in food packaging are all exempt from the visa suspensions.