Which U.S. Visas Will Be Impacted Between The Trump Biden Administrations?

Joseph R. Biden will be the next U.S. President, but with Trump in office until January 20, 2021, which visas will continue to be affected? 

People currently in the U.S. may continue to file for any of the following visas.

• O-1 extraordinary ability
• P-1 athletes
• L-1 inter-company transferees and essential employees
• E-1 and E-2 investors
• TN-1 professionals from Canada or Mexico
• B-1/B-2 visitors
• F-1 and M-1 students and OPT and CPT applications
• R visas for religious workers 

Green card applications for family based and all employment based visas may also be filed with adjustment of status cases from within the U.S.

Those that are outside of the U.S. cannot file any of the following visas until Dec. 31, 2020.

• H-1B,
• H-2B,
• L-1, and
• J visas 

Watch the video below for full details.

The currently enjoined Presidential proclamation barring entry to individuals with the above visa types continue to be inconsistently implemented. Predictably, talks between the Department of State and the lead Plaintiff US Chamber of Commerce have broken down.

Furthermore, all visas from the UK, Ireland, the Schengen Region, which consists of 26 countries in Europe, China, Brazil and Iran are banned except for National Interest Waivers (NIW). While a NIW can be obtained in certain circumstances, it is extremely difficult for family members to also be granted entry.

These bans are slate to expire the last day of December 2020 and many consulates are scheduling interviews for after the new year. 

Exceptions to the green card ban are marriage, family-based and investor applications in addition to the EB-2 National Interest Waiver. Consular processing of these green cards (not the application of the I-140) can still be done in the U.S.

New USCIS H-1B regulations deal a devastating blow to business immigration, specifically for the tech industry. The H-1B changes will cut almost a third of H-1B tech positions and force tech companies to pay salaries at least 40% more than the national average.  

A potential solution for companies to avoid the chilling effect of the DOL’s hiked H-1B wages is to use private surveys that have been certified by the DOL. There is no guarantee this will work in all cases and requires an upfront cost to the survey company to find out.

The interim final rules for the new H-1B regulations were issued without any notice period or right to comment and are being challenged in court. The case is slated to be heard in mid-November by the same judge who enjoined Trump’s Presidential proclamation. A ruling is expected before Dec. 7, 2020 when the regulations are set to take effect.

All visa types are can still be filed for by individual currently in the U.S. Right now it is more difficult for those who are outside of the U.S. Consular processing delays continue to be an issue amidst the COVID-19 pandemic.

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