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A Cautionary Tale for Manufacturers: Challenges Posed by U.S. Immigration Law and Coronavirus (COVID-19) to Employing Foreign Workers

March 13, 2020

Let's consider this hypothetical situation: You’re feeling lucky! You just found that highly knowledgeable and skilled electrical engineer you have been looking for more than eight months so your company can move forward with the design, development and manufacturer of an exciting new product in conjunction with your German venture partner. The candidate is a Japanese national who is currently working on an H-1B visa for another U.S. employer. Your head hunter tells you the engineer can start working for your company as soon as you file a new H-1B visa petition with the United States Citizenship and Immigration Services (“USCIS”) seeking a change of U.S. employer and extension of stay for the candidate. But the candidate does not want to give notice to his current employer before you have the USCIS approval of the petition in hand. So, you pay the extra $1,440 USCIS premium processing fee in order to receive a decision on your petition within 15 calendar days. You console yourself about the added cost with visions of bringing this talented engineer on board shortly and moving forward quickly with your new product development project. Then the novel COVID-19 (Coronavirus) hits the world stage!

First, your immigration lawyer tells you that the ranks of the USCIS adjudicating officers are so hard hit by the virus (and the social distancing measures in place to prevent its spread) that USCIS will likely suspend its premium processing service, resulting in a possible delay of three or more months before USCIS would approve your H-1B change of employer/extension of stay petition.  You rush to get the petition prepared and filed before premium processing is suspended. It turns out the USCIS has sufficient adjudicating officers in its premium processing service ranks working remotely so the service is not suspended and your H-1B petition on behalf of the engineer is approved within 15 calendar days. You breathe a sigh of relief and welcome the H-1B engineer aboard. 

You are finally beginning to see progress with the new product development efforts--then the virus strikes your workforce heavily and you have to place the H-1B engineer and his support team on furlough, as you cannot support their work remotely. You then remember that in order to get the H-1B visa for your new engineer, you had to obtain a certified Labor Condition Application from the U.S. Department of Labor by agreeing, in part, to pay the H-1B worker for non-productive time, even if his similarly situated U.S. workers are not entitled to such compensation.

You think you are in a tough spot until you come up with the creative idea of shortening the furlough by sending the H-1B engineer, who has remains virus-symptom free for 14 days, to Germany to engage in much-needed design collaboration with your German joint venture partner. But, after the engineer arrives in Germany, the global effects of the virus deal another stunning blow. With only a few days’ warning, on March 11, 2020, President Donald J. Trump issues an unanticipated Presidential Proclamation -- Suspending of Entry As Immigrants and Nonimmigrant of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus. This proclamation prohibits entry into the United States for an indefinite period of any immigrant or nonimmigrant, including your H-lB engineer, who was physically present within the Schengen Area of Europe, which includes Germany. You sink into gloom until the H-1B engineer gleefully tells you he read the proclamation and he is not subject to this latest travel ban because he is the parent of a U.S. citizen child who is unmarried and under the age of 21.

Elated, you advise your H-1B engineer to hop on a flight to the U.S. immediately, as you have now developed sufficient support to have the engineer work remotely from his U.S. home. However, he informs you that the H-1B visa stamp in his passport allowing him to apply for re-entry to the U.S. has now expired. Although he has an application for a new H-1B visa stamp pending at the U.S. embassy in Frankfurt, its issuance has been delayed for an undeterminable period because of the cancellation of nonimmigrant visa appointments at the U.S. embassy, again as a result of COVID-19. You are once again frustrated. However, you have hope that the virus and the delays caused by it will soon abate so that the H-1B engineer can return to the U.S. and continue to apply his needed talent and knowledge on your company’s behalf.

What is the moral of this modern cautionary tale? Creativity, patience, perseverance, hope and a little bit of luck are necessary to surmount the hurdles that U.S. immigration law and a novel virus can put in your way when hiring and employing foreign talent but the considerable technical knowledge and ingenuity gained by clearing those hurdles and employing such talent are often well worth it!   

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