Connecticut, US

This year has presented significant immigration challenges for companies that utilize employment-based immigration to address workforce shortages. The global COVID-19 pandemic has resulted in numerous international travel bans, as governments attempt to slow the transmission of the virus, coupled with the temporary closure of U.S. Consulates, which has delayed the availability of visa stamp appointments in order for foreign nationals to obtain the necessary work visa to enter the U.S.

Further, in response to the negative economic impact of the pandemic, the Trump administration recently issued a proclamation banning the entry of H-1B, L-1 and certain J-1 visa holders, unless the individual was present in the U.S. or had a valid H-1B, L-1 or J-1 visa as of the effective date of the proclamation. These developments have imposed substantial roadblocks with respect to the ability of companies to transfer talent to the U.S. and have also resulted in situations in which foreign national employees continue to be stranded abroad, as they were outside of the U.S. when the pandemic struck and the resulting travel bans were implemented. 

However, agricultural companies are well-positioned to weather these talent acquisition hardships, due to the critical nature of their business in providing food and other necessities for American families, as well as the visa categories routinely utilized for agricultural positions. Typically, a foreign national with a U.S. job offer must obtain a visa stamp from a U.S. Consulate abroad before entering the U.S. to commence employment. As such, the consular closures caused by the pandemic have delayed these foreign workers’ entry into the U.S. There is an exception, though, where it is possible to request an emergency appointment for someone who will serve as an essential or critical worker.

Throughout the pandemic, the U.S. government has recognized the key role that agribusiness plays in putting food on the table for Americans. As such, agricultural companies, such as livestock production companies, have been able to request consular discretion to schedule emergency visa appointments for critical agricultural workers. 

As noted above, the recent presidential proclamation impacts the entry of H-1B professional workers, L-1 intracompany transfers and certain J-1 categories, including interns and trainees. The proclamation’s impact is momentous, as foreign nationals in these visa categories will not be able to enter the U.S. until after December 31, 2020, unless the person was physically in the U.S. on June 24, 2020 or, if outside of the U.S., held a valid visa in one of these categories as of the effective date. 

While this will significantly hinder the transfer of talent to the U.S., agricultural companies are largely immune to the negative impact of this proclamation as there is an exemption for individuals entering to provide temporary labor or services essential to the U.S. food supply chain.

Consequently, agricultural companies will be eligible to request an exception for foreign national talent needed to support their operations.

Finally, employers in the agricultural sector are well-positioned to strategically withstand these pandemic-related immigration obstacles, due to their frequent utilization of the TN visa. Originally created under the former North American Free Trade Agreement (now the United States–Mexico–Canada Agreement), the TN visa is available to Canadian and Mexican nationals in certain occupational categories, including  animal scientists, animal breeders, and veterinarians. Canadians may present the TN visa application directly at the border under a fast track application process, and Mexicans apply for the TN visa at a Consulate, with the current option of requesting an emergency appointment. Thus, the TN visa covers many positions that are directly relevant to agribusiness operations, and with generally a streamlined application process.

In summary, while the pandemic continues to pose novel issues for companies, the agribusiness industry continues to be able to rely on immigration for addressing any labor shortages for their critical U.S. operations.

For additional information on this issue, please reach out to me at [email protected] or your Fragomen immigration professional.

This blog was released on July 8, 2020 and, due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our COVID-19 microsite, subscribe to our alerts and follow us on LinkedIn.