Executive Order Challenges the Business Community

Gerald LeMelle

By Gerald LeMelle

LeMelle is a partner at Dunlap Bennett & Ludwig’s Tysons Corner Office.

Click here to read DBL’s original coverage and key points from the Executive Order. [Jun.22/Jun.23, 2020]

[Jun. 24, 2020, Tysons Corner]  The Executive Order that was signed on Monday, June 22 extending the ban on H1-B, H2-B, and L-1 visas until 2021 challenges businesses on several fronts. Not only will the ban disrupt planning and potentially jeopardize corporate acquisition of very talented personnel, but it leaves employers in limbo for the next six months and possibly a lot longer.

By their very nature, Executive Orders are very sparse on details. As all Immigration attorneys know; rarely does a business client appear in the office with the exact same set of facts surrounding their case or have the same interest as the client who just left. An Executive Order couldn’t possibly anticipate the numerous unexpected scenarios that may occur in its wake. Where there are gaps, an experienced immigration attorney can help fill the void but it remains frustrating to CEOs and HR Directors across the country who use and/or depend on foreign talent.

Since March of 2020 when COVID-19 would force the US to close its borders and halt the processing of immigrant and non-immigrant visas, business leaders understood the delay and were forced to plan around the pandemic. While no could definitively predict how the pandemic would play out, everyone could follow news and make decisions accordingly.  The Executive Order shifts the metric from the pandemic to protecting American jobs.  Since there is no guidance on what acceptable unemployment numbers will be in December 2020, planning for 2021 becomes even more difficult.

H-1B visas are often relied on by big U.S. tech companies like Cognizant Technology Solutions, IBM, HCL America Inc., Apple, Inc., Qualcomm Technologies, Inc. Infosys, Google, and Walmart Associates, as well as several smaller medical science and engineering companies, many of who service the Defense Industry.

The ban is particularly hard on companies using the L-1 visa. The rationale for the Executive Order is to protect U.S. workers by freeing up jobs in an economy reeling from the coronavirus.   L visas, which allow intracompany transfers of foreign executives, managers, and specialized knowledge employees to parent, subsidiary, branch, or affiliates in the United States. L-1 visa holders are not directly competing with the US workforce as they are already employed by the company. The ability to strategically place key corporate personnel is now limited. Additionally, “new office” L-1’s typically invested large sums of money in the US and create jobs locally.

From the numerous business clients who are reaching out seeking clarification, there is a growing frustration that a key player in helping to fill in the gaps for the business is missing in action:  Congress. The U.S. Constitution grants Congress the exclusive right to legislate in the area of immigration. Historically, it is within the power of the Congress that business concerns and scenarios related to the acquisitions of foreign workers are raised and the details on how the policy will be achieved are ironed out. Whether you agree with the outcome or not, at least there was a process. Executive Orders take that voice away.

If you believe you are impacted or have questions about the impact of the Executive Order, please call us at 703-777-7319 or email clientservices@dbllawyers.com to schedule a consultation.

To learn more about immigration, visit our Immigration page.

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Posted in: Business Law, Immigration

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