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Banned Or Not Banned, That Is The Question

Immigration lawyers have found themselves doing the visa-ban vs. country-ban game.

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Immigration lawyers are sleeping a little better these days, yes, but I can’t say that our days of anxiety are over quite yet. We are constantly scratching our heads about where our clients fit into new policies. One of the latest conundrums revolves around whether a client is impacted by one of the myriad of bans currently on the books.

President Joe Biden kept his promise and reversed the Trump administration’s infamous Muslim Ban immediately upon taking office, making it possible for immigrants from seven Muslim countries to resume their immigration journeys after four years of being shut out of the United States. But that was only one of several bans that emerged in the past few years, particularly during 2020. People have been banned from obtaining new temporary or permanent visas (green cards). The bans are visa- as well as country-specific. Essentially, COVID-19 gave Trump what Congress wouldn’t — limited immigration.

The pandemic brought all U.S. embassies around the world to a complete halt, postponing interviews and appointments that had taken years to schedule — sometimes one year, sometimes 10 or more.

But rather than creating a national strategy for reducing all travel into the U.S. to curb the pandemic, Trump used the opportunity to ban specific visa categories. Biden recently lifted the ban on those getting new green cards but certain work visas such as H-1B (skilled professionals), H-2B (temporary nonagricultural jobs), L-1 (multinational transfers), and J-1 (short-term visas generally used by trainees and au pairs) remain banned. The ban is in place until March 31, 2021.

At the time, industry leaders objected to the ban on work visas, which left many of the workers they had already hired stranded overseas. Their concerns were borne out in 2021 reports that show that the bans were ineffective in saving jobs and that industries, have in fact been harmed and many jobs went unfulfilled.

The country-specific ban includes 26 European countries collectively referred to as the Schengen area. Bans are in place for China, Iran, Brazil, and South Africa.

There are clear exceptions to these bans, such as for U.S. citizens, green card holders, and spouses and minor children of U.S. citizens and green card holders.

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For those who do not meet the above exceptions, a national interest exception (NIE) was created for those subject to the Schengen ban. Initially, the exception was to prove their work serves the “U.S. economic interest.” It applied to certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents. It should be noted that treaty investors and traders are citizens from countries with which the U.S. has treaty agreements. Treaty investors (E-2 visa) will on average invest at least $100,000 in their U.S. businesses — often much more — and provide the embassy with business plans for creating American jobs. Treaty traders must prove substantial trade between America and the home country. Such noncitizens make contributions to the U.S. economy even before they arrive here.

On March 2, 2021, the current administration rescinded the above guidance for Schengen countries. The exception of “substantial economic benefit” which was broad and allowed noncitizens to show their economic contributions was beneficial to America, is further restricted and replaced by a narrow and specific standard of “vital support for critical infrastructure.”  This standard requires noncitizens to prove their work will benefit specific infrastructure sectors including healthcare and public sector, agriculture, chemical, transport, energy and more listed in a memo by the DHS Cybersecurity and Infrastructure Security Agency.

Many of the visa applicants, especially treaty visa applicants, who have businesses, financial ties, and contributions in the U.S., will unlikely meet these new requirements. Some embassies have emailed immigration lawyers to expect fewer E-visa approvals, others have updated their website to reflect the change.

We as immigration lawyers have found ourselves doing the visa-ban vs. country-ban game. What visa category are we working with, what country is the client from, and is there a national interest exception? And, if there is a NIE, how is a specific embassy handling the process and what kind of evidence do we need? It’s all rather stressful and complicated, especially as not all embassies have been treating the NIE in the same way.

As things stand, the situation is fluid, frustrating, and difficult. Many people who are awaiting entry into the U.S. can actually help our flagging economy. And though there needs to be a balance between the pandemic and the economy, measures can be put into place to ensure those who enter go through a more stringent COVID-testing procedure rather than restricting the visa exceptions.

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Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.

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