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It’s Jan. 12, and this is your BAL Immigration Report.
“Sixty days may seem like a long period, but it can actually be a pretty short period of time, especially in a downturned economy.”
—Carla Tarazi, BAL Partner
President Joe Biden announced a new process last week that will allow Cuban, Haitian and Nicaraguan nationals to travel to the United States and apply for work authorization. The administration also expanded a similar program for Venezuelan nationals.
Applicants will be screened on a case-by-case basis and must fulfill certain security and health requirements. They must also have a supporter already in the U.S. The new process will be paired with increased efforts to turn back migrants from Cuba, Haiti and Nicaragua who attempt to cross the border without authorization.
Immigration groups, including the American Immigration Lawyers Association, praised the expansion of legal pathways for nationals of Cuba, Haiti and Nicaragua. They criticized the planned border measures as an erosion of the U.S.’s commitment to asylum.
The Department of Homeland Security extended its COVID-19 vaccination requirement for most foreign nationals entering the country by air. The policy will remain in place through at least April 10, 2023. Nonimmigrant foreign nationals flying to the United States must provide proof that they are either fully vaccinated against COVID-19 or qualify for an exception. Exceptions may be available to individuals from countries with limited vaccine availability, children under 18, people traveling for humanitarian or emergency reasons and a small number of others.
A conversation with BAL Partner Carla Tarazi: the impact of layoffs on nonimmigrant foreign nationals.
BAL Immigration Report: U.S. companies laid off tens of thousands of employees in the final months of 2022, as they tightened their belts amid fears of an economic downturn. BAL Partner Carla Tarazi joined us to discuss why layoffs can be particularly difficult for foreign nationals holding employment-based nonimmigrant visas such as H-1Bs.
Tarazi: When a foreign national holds an employment-based visa, they are allowed to stay in the U.S. as long as they continue to be employed by the sponsoring employer. So when they find themselves no longer employed by the sponsoring employer, they technically have no basis to remain in the U.S.
BAL: Regulations provide a discretionary grace period that allows workers in H-1B, L, O, TN or E classifications to remain in the U.S. for up to 60 days while they look for a new job. Immigration authorities determine whether an individual has been in the country lawfully during the 60-day period upon receiving a petition from a new employer. Tarazi said the 60-day time frame generally begins after the last day of employment, not when the notice is received. That still leaves a tight window to find a new job.
Tarazi: Sixty days may seem like a long period, but it can actually be a pretty short period of time, especially in a downturned economy, to interview and secure new employment and allow the new employer to file for a new petition on your behalf. And so what, if anything, can be done? What are the options of individuals who are, in fact, laid off? The obvious one is to secure new employment as soon as possible. If that’s not possible, then it is important to really understand your options and whether or not you’re eligible for any other visa category.
There’s a whole alphabet soup out there, and some may seem like a stretch, but it is important to seek counsel and to confer with immigration counsel to really understand what the eligibility requirements are for each visa category, because in some instances that may help you tailor your job search. For example, if you work for a nonprofit organization, you may have a longer period of time in which to apply for a new H-1B.
Unfortunately, options in general are very limited because you do have to find a sponsor. But one option that many pursue is that you can enroll as a full-time student again — and I emphasize you have to be a full-time student to qualify for the F visa category. So many go back to school, although it can be a costly option because you have to pay as an international student, but that could in the long run give you additional options.
BAL: Other visas may be available depending on an employee’s specific circumstances. For example, individuals who are married to a nonimmigrant visa holder may be able to apply for a dependent visa, such as an H-4 or L-2. This option includes work authorization only in limited situations. One final possibility is to apply for a B-2 visitor visa. Visitor status does not include work authorization but can provide more time to remain in the U.S.
Tarazi: Many individuals who hold H-1B visas may have graduated from a U.S. university and have spent the majority of their adult life in the U.S. and have ultimately built a life in the U.S. And if they have U.S. citizen children who’ve never lived abroad, the transition and the need to travel can be quite difficult, and I think it’s often overlooked. So it’s not simply that, “Oh, that’s okay. You know, your temporary term in the U.S. has ended, and now you have to go back home.” For many foreign nationals, the U.S. is their home and has been for many years.
BAL: In some cases, employers may try to help foreign national employees by deferring the separation date. While the strategy may work in limited circumstances, Tarazi said every situation is unique and employers must assess the risk they are exposed to if an individual is on payroll but not doing productive work. Even with extra time, it may be difficult to find new work in a challenging job environment.
Tarazi: For individuals who hold H-1B, if they’re not able to secure employment within that 60-day grace period, they may find themselves in a situation where they have to depart the U.S. However, they may continue their job search long distance, and once they secure new employment, they may in fact be eligible for a new H-1B and are able to return to the U.S. Logistically, however, is what if you have a home, your children are in school — there’s a lot of personal logistics that you really have to tend to, and you may have to take care of them within that 60-day period. But on a positive note is that long term, they may be able to return to the U.S., but they do have to bridge that gap between their current employment that has recently ended and new employment.
The European Council has recommended that EU member states introduce COVID-19 testing requirements for travelers from China. The council advised members to require proof of a negative COVID-19 test taken within 48 hours before departure from China. It also encouraged randomly testing passengers for COVID-19 as they arrived. Several countries — including Australia, Canada, France, Japan, South Korea and the United States — have already introduced such requirements for travelers from China. China has criticized the restrictions and stopped issuing short-term visas to Japanese and South Koreans in response.
Hong Kong has launched a one-stop online platform for foreign talent from around the world. Applicants can use the platform’s Talent Admission Scheme matching tool to determine the immigration programs for which they are eligible. They can then be directed to the immigration department’s e-Visa platform to submit applications online. The portal is part of Hong Kong’s effort to be more aggressive in attracting high-skilled foreign workers.
Qatar has resumed its visa-free entry program for residents of 95 countries following the end of the 2022 FIFA World Cup. As of Jan. 1, qualifying foreign nationals no longer need a Hayya card to enter the country. Travelers should check the Qatari government’s visa website to confirm their eligibility and permitted length of stay. Qatar has also resumed normal entry operations at the Abu Samra border crossing.
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