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Is it possible to get an H-1B visa?

Is it possible to get an H-1B visa?

| Dec 23, 2020 | Business-Based Immigration

The answer to this question is that it depends. In June 2020, President Trump’s Presidential Proclamation 10052 suspended entry of those (among other nonimmigrant visa classifications) who hold an H-1B work visa. As written, the president’s proclamation is set to expire December 31, 2020. At that time, the proclamation may lapse, renew or another may take its place.

It is important to keep in mind that this country is one with checks and balances. The judicial system can keep the executive branch in check. As such, cases could, and currently are, move forward to address, alter or remove these restrictions. The U.S. District Court for the Northern District of California provides the most recent example.

Judge Jeffrey S. White of the U.S. District Court for the Northern District of California recently presided over a case that questions the legality of the President’s June 22nd nonimmigrant visa ban. The case, National Association of Manufacturers, et al. v. United States Department of Homeland Security (“NAM”), involves membership organizations requesting a preliminary injunction. In his holding, Judge White states that the President’s order was an overstep and that policy decisions about entry with certain visas should remain within Congress. As such, he granted the preliminary injunction and states that the State Department should resume processing these visas.

What does this mean?

The order is specific for the plaintiffs of the NAM case and their members which include the National Association of Manufacturers, the National Retail Federation, Technet, Intrax, and the U.S. Chamber of Commerce.

Even if an H-1B petitioning employer is not member of one of the NAM plaintiffs, the nonimmigrant visa ban is set to expire in less than two weeks. President Trump could extend the visa ban beyond December 31, 2020. However, the Biden Administration will be taking office in approximately one month and could quickly reverse the visa bans. Employers should stay tuned.

Those who are looking to enter the country or bring in workers using a work or other visa are wise to reach out to experienced legal counsel to review their situation and provide guidance about the current state of immigration policies.