What Does the European Travel Ban Mean for H-2B Workers?

Published Friday, March 13, 2020
by Keith Pabian

Quick Answer: The employees may be able to get to the club for the spring season. If they are already in the United States, it is currently business as usual at the government’s immigration service, which approves the in-country petitions. If the workers are outside the United States, they will be able to come for the spring season if: (1) they are able to obtain a visa at the local U.S. embassy/consulate; and (2) they are able to fly to the United States.  The longer answer for out-of-country workers is based on the below analysis:

European travel ban

On March 11, President Trump announced a temporary suspension on most travel from Europe to the United States.  This suspension is likely to impact many employers who recruit H-2B workers from European countries.  Below are some of the details regarding the travel suspension and its impact on the H-2B program:

Who is impacted: The suspension applies to foreign nationals who have been in the affected countries (listed below) at some point during the fourteen (14) days prior to their planned arrival in the United States. While there are some exceptions for foreign nationals, including those who are legal permanent U.S. residents, the exceptions do not apply to H-2B workers. 

When do the restrictions go into effect: The travel ban is set to go into effect at 11:59pm EST on Friday, March 13th, and will last thirty (30) days.  At this time, we do not know if the ban will be extended past the thirty (30) days.

What countries are affected: The travel suspension applies to the following twenty-six (26) countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.  The ban does not apply to some of the most popular European H-2B countries such as the United Kingdom, Ireland, Romania, and Ukraine.

In short, the travel suspension means that H-2B workers from the affected countries will not be able to travel to the United States for at least thirty (30) days, and possibly longer if the suspension is extended. 

Embassy closures

Several embassies and consulates in H-2B eligible countries have significantly limited the services available or closed temporarily.  This will likely cause delays in the issuance of visas for some H-2B workers, particularly those who had scheduled consulate appointments in the next few weeks.  While additional embassies and consulates may close or scale back their services temporarily, we do not expect the closures to be permanent, and therefore, we do not expect them to cause a significant disruption to H-2B workers entering the U.S.  Below is information regarding embassy and consulate closures in H-2B eligible countries that may impact your workers.

Jamaica: The U.S. Embassy in Jamaica has temporarily suspended all visa and consular services due to employees that tested positive for the virus.  Our understanding at this time is that the Embassy expects to reopen in two (2) weeks, however, they have not yet announced when they will reopen.

Italy: The U.S. Embassy and Consulates in Italy are only providing emergency visa services at this time.  

Question & Answer regarding H-2B Topics

  • Should I stop moving forward with the H-2B program for the 2020 summer season?
    • Answer: even if you are worried about significant impacts to business levels this summer, we would not recommend ceasing your H-2B applications.  There is no benefit of withdrawing the H-2B application at the current time.  Instead, we would recommend waiting to see how significant the impacts are.  If the outbreak is short-lived, and business levels return to normal in the summer, a wait-and-see approach will allow you the flexibility to still hire your workers.
  • If business levels in April and May have been significantly impacted, can I delay the arrival of H-2B workers?
    • Answer: as you may know, the H-2B regulations contain an prohibition against “staggering,” which means that employers cannot typically delay the arrival of workers due to ramping up of business levels during the shoulder season.  Business impacts caused by the Coronavirus would not eliminate this prohibition, and therefore, we cannot advise you that staggering would be 100% legally compliant.  However, based on our experience with government audits, we anticipate that the government would be willing to consider Coronavirus concerns and potentially overlook staggering violations this year.  Please note, though, that if you decide that you cannot bring your H-2B workers in at the beginning of your employment period, we would strongly recommend maintaining documentation regarding lost business to produce in the event of an audit.

 

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