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Exceptions to travel restrictions: getting employees back to the U.S.

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Since President Trump declared that the COVID-19 outbreak constituted a national emergency in March, restricting immigration has been one of the administration’s preferred tools to address the outbreak.  One of the first steps President Trump took was to issue a series of Proclamations suspending entry of most foreign nationals traveling from certain countries with a high number of confirmed COVID-19 cases, including China, Iran, the entire Schengen Area, U.K., Ireland, and, later, Brazil.

In June, President Trump issued another Proclamation restricting travel, this time for economic reasons.  In support of the idea that certain foreign workers and their dependents posed a risk to the recovering U.S. labor market, Presidential Proclamation 10052 suspended the entry of a wide range of employees seeking to enter the U.S. Those with H-1B, H-2B, L-1, or J-1 status who were outside of the U.S. on June 24, 2020 and did not have a valid nonimmigrant visa were barred from re-entry, along with their families.

These two main restrictions laid out different criteria for denying entry to the U.S., although the two may overlap—for example, for an individual currently located in Italy who needs a new H-1B visa to travel.

Both proclamations created an incredibly restrictive environment for human resource leaders and companies tasked with managing foreign nationals within the workforce.

However, an exception was provided that allowed travel by individuals whose entry would be “in the national interest.”  While that was too vague for companies to rely on, recent guidance issued by the Department of State has clarified who may qualify for these “national interest exceptions.”

Although an approval is not guaranteed, our attorneys have had recent success pursuing these exceptions. Individuals with a strong argument that their travel falls within one of the enumerated categories for an exception have a good chance at approval: a request is well worth the time and effort involved.

Who is exempt from the proclamations?

Let’s start by outlining who is exempt from the bans—meaning that the restrictions, on their face, do not apply.  U.S. citizens, lawful permanent residents, and spouses, parents, siblings, or children of U.S. citizens or permanent residents are not subject to the restrictions, and do not need to go through the national interest exception process to travel to the U.S.  Further, for the labor market proclamation, individuals who were in the U.S. on the effective date of the proclamation (June 24), or who have a valid H-1B, H-2B, L-1, or J-1 visa or travel document are exempt from the travel ban.

Who may qualify for a national interest exception?

The Department of State (DOS) recently issued detailed guidance outlining categories of individuals whose travel to the U.S. would be in the national interest.  The guidance was issued particularly for the labor market proclamation, but is also helpful to show who may qualify for an exception from the geographic proclamation as well.  The following travelers may qualify for an exception:

  • H-1B, L-1A, or L-1B applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.
  • H-1B applicants who are technical specialists, senior level managers, or other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S. To fall into this category, at least two out of a list of five indicators must be present, including:
  • The employer has a continued need for the services of the H-1B applicant as demonstrated by an approved Labor Condition Application (LCA) during or after July 2020;
  • The applicant is a senior-level employee who will provide significant contributions to an employer meeting a critical infrastructure need, such as communications, emergency services, energy, financial services, food and agriculture, healthcare, and information technology;
  • The wage rate paid to the H-1B applicant exceeds the prevailing wage rate by at least 15 percent;
  • The H-1B applicant has unusual expertise in the specialty occupation as demonstrated by the applicant’s education, training, and/or experience; or
  • Denial of the visa will cause financial hardship to the U.S. employer.
  • Certain L-1A senior level executives or managers filling a critical business need of an employer meeting a critical infrastructure need.
  • Certain L-1B applicants who are technical experts or specialists meeting a critical infrastructure need.

What about dependents?

The DOS guidance indicates that all H-4, L-2, and J-2 applicants who will accompany or follow to join a principal applicant will be granted a national interest exception or are otherwise exempt from the ban.

What is the process for applying for a national interest exception?

There are two avenues to secure an exception: either through U.S. Customs and Border Protection (CBP) or a U.S. consulate or embassy.  Individuals in the Schengen area, the U.K., or Ireland who have valid visas, but whose travel is restricted by the geographic proclamation may be able to apply directly with CBP.  If CBP approves the request, the approval will be communicated to the airline, and the individual will be allowed to board the flight to the U.S.  Importantly, this approval is only valid for one entry—if the individual has to depart the U.S. again at later date, they would need to seek a new exception for all subsequent travel to the U.S.

Individuals subject to the labor market proclamation who do not yet have a valid visa will need to apply directly with the U.S. consulate or embassy.  These applications are made even more difficult by the fact that many consular posts across the world still have limited operations and may remain closed for routine visa processing.  If the national interest exception is approved by the consulate, the individual should receive the visa in their passport with a notation that the exception was approved.  The visa may also be valid for only 30 days from approval and for one entry to the U.S.

If you are a foreign national, or employ a foreign national, who may be eligible for one of these national interest exceptions, we encourage you to contact a Chin & Curtis attorney to discuss your individual case and any questions you may have.

About the Author: Phil Curtis has practiced immigration law for more than 30 years and is a founder of Chin & Curtis, LLP.  He has guided Chin & Curtis for the last seven years and now serves as Co- Managing Partner.  With more than 40 professionals dedicated to serving the immigration needs of the business community, Chin & Curtis is New England’s largest independent immigration law firm.


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Postal workers complain of poor COVID-19 precautions, lack of contact tracing

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The 2,174 employees of the Los Angeles United States Postal Service (USPS) plant work everyday amid the Covid 19 pandemic on April 29, 2020, in Los Angeles, California. - The Los Angeles USPS plant is the biggest in the US. The plant served 155 Post Offices and 3, 162 delivery routes.In April they processed 14 million  packages vs 10 million last year. Everyday the United States Postal Service (USPS) employees work and deliver essential mail to customers. (Photo by VALERIE MACON / AFP) (Photo by VALERIE MACON/AFP via Getty Images)

Mismanagement at the U.S. Postal Service (USPS) endangers more than just the timely delivery of ballots for November’s elections. It endangers the lives of Postal Service workers during the coronavirus pandemic.

Nearly 10,000 postal workers have tested positive for COVID-19, and at least 83 have died. But the agency isn’t screening workers for symptoms, testing them for the virus, or doing meaningful contact tracing. Social distancing and mask-wearing are not always enforced, according both to workers interviewed by ProPublica and to many of the more than 250 complaints to the Occupational Safety and Health Administration (OSHA).

For instance: “The station and the vehicles have not been cleaned and sanitized. Bleach spray bottles were provided at one time but the employees were not provided material to wipe down surfaces and the bottles have since broken,” a June complaint from Houston reads. “Employees in the vehicles do not have hand sanitizer or another method to cleanse hands while away from the station.”

Or in Smithtown, New York: “the air conditioning has not been working properly for the last 3-4 weeks (blowing 81 degrees at the vent) which has made working in the building uncomfortable and may be contributing to employees not wanting to [wear] their masks.”

Workers say they aren’t informed when people they’ve worked directly with test positive for COVID-19.

“They should’ve told anybody who worked with him, ‘You need to go home.’ What is it going to take, somebody to die in the building before they take it seriously?” a St. Paul, Minnesota, postal worker told ProPublica. 

”They have the occupational nurse doing the contact tracing, but sometimes there’s no contact with the worker. And some managers don’t report [the case] to the tracking. Some managers tell people, ‘You don’t sound sick, come to work,’” the American Postal Workers Union’s Omar Gonzalez said.

The risk to workers becomes a risk to democracy as well if too many workers are sick or quarantined when ballots need to be delivered. More than 8% of postal workers have had to take time off related to the pandemic, and in some areas of the country, significant numbers of workers may be out at any given time, potentially compounding the damage being intentionally done by postmaster general and Trump toady Louis DeJoy.

It’s unconscionable to risk the lives of any workers, but when it’s partly happening because of a partisan war on the organization where they work—because the organization has been weakened, left without resources, forced to cope not just with the challenges of the pandemic but with its own leadership’s attacks on timely service—it’s especially disgusting.

This blog was originally published at DailyKos on September 18, 2020. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


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Meatpacking industry got its way on COVID-19 policies, and workers died

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When the meatpacking industry was hit with major coronavirus outbreaks back in the spring, there was no question about making workers’ lives a priority—it was always out of the question. This is an industry with high injury rates and low wages for its vulnerable population of workers, with its many people of color and immigrants. Industry executives have built their careers on harming people. So when local public health departments and outcry over hundreds of COVID-19 cases threatened to close meatpacking plants, the industry asked for help from the federal government. And since Donald Trump was in the White House, that help came almost immediately, without any consultation of any group besides industry lobbyists and executives.

USA Today reports that Trump’s executive order keeping meatpacking plants open came just a week after a meat industry lobby group provided the U.S. Department of Agriculture with … very similar language for such an executive order. The North American Meat Institute’s defense boils down to “hey, we offer language for exactly what we want all the time.” But the federal government doesn’t usually use such language so directly or quickly, without input from other stakeholders, experts say.

According to Adam Culver, an attorney at Public Citizen, emails between Team Trump and the industry show a “degree of collaboration” that’s “astounding.” 

“Wealthy interest groups lobby decision makers in Washington all the time,” James Brudney, a professor at Fordham Law School and former U.S. Senate Subcommittee on Labor chief counsel, told USA Today. “They might get a draft from industry, but it wouldn’t just sail through because there would be other parties involved. That seems not to have happened here.”

Meanwhile, meatpacking plants have been tied to more than 40,000 COVID-19 cases and more than 200 workers have died, and the federal government has issued just two small fines. In one of those cases, Smithfield closed a Sioux Falls, South Dakota, plant after 350 positive cases, then used Trump’s executive order to reopen a few weeks later. By now, that plant has had 1,300 workers get sick, and four die. The company was fined about $13,000 for those workers’ deaths, in yet another message that the Trump administration does not care about the lives of meatpacking workers.

“These tiny fines are nothing to [meat plant owners]. They give an incentive to make these workers work faster and harder in the most unsafe working conditions imaginable,” Kim Cordova, the local union president at the other plant Trump’s OSHA bothered to fine, told The Washington Post. But why would we expect the government to fine companies for behavior that it had essentially signed off on in advance?

”To have government regulatory agencies intervene in a public health matter on behalf of a business interest is appalling,” Lawrence Gostin, director of the World Health Organization Collaborating Center on National & Global Health Law, said. “As a result, people die. It’s not just an ethical breach or something that’s a sterile issue of good governance, which it is. It also costs people’s lives, and that’s unforgivable.”

This blog was originally published at DailyKos on September15, 2020. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


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Teachers have public support for COVID-19 safety strikes, this week in the war on workers

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Teachers in some areas have said they might go on strike rather than going back to in-person teaching if they felt it would be unsafe—and a majority of Americans would support them, a new HuffPost/YouGov poll found. A third of people said they would strongly support teachers, and another 22% said they would somewhat support teachers.

Just 21% of people said schools should completely reopen in person, with another 26% saying schools should partially reopen in person, and 38% saying schools should be closed or online-only. A 47% plurality said that the risks of reopening schools are greater than the consequences of keeping them closed, and 45% said teachers should not be required to teach in person. Regardless of what teachers or the public think, schools have already reopened in many places and teachers are dying.

This blog was originally published at DailyKos on September 12, 2020. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


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How America Continues to Fail the Health Care Workers Battling the Pandemic

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American Red Cross workers travel from one community to another conducting the blood drives that save countless lives in emergency departments and operating rooms.

But they struggle to perform that vital work while keeping themselves safe during the COVID-19 pandemic. Like many health care employers, the Red Cross fails to consistently follow social distancing and other coronavirus safety guidelines.

“Safety shouldn’t be only if it’s feasible,” observed United Steelworkers (USW) Local 254 President Darryl Ford, who represents hundreds of Red Cross workers in Georgia and Alabama. “It should be all the time.”

Eight months after COVID-19 hit America, the nation continues to fail the thousands of health care workers who put their lives on the line each day to help others survive the pandemic.

They still face chronic shortages of personal protective equipment (PPE) because the U.S. never fixed the broken supply chains that resulted in highly publicized scarcities of face masks, respirators and other crucial equipment last winter. Some employers refuse to take even common-sense measures to keep workers safe.

The Red Cross failed to provide face shields to protect Ford and his colleagues from blood spatter. And when a company that made the devices offered them for free, the Red Cross declined because of what it deemed the low quality.

“If it’s snowing outside and you don’t have a coat to give me, but you do have a sweater, give me the damn sweater,” fumed Ford, noting his members prefer some protection to none.

Employers’ shortsighted practices not only pose lethal risks to health care workers but ultimately will endanger the patients they serve, especially if a second wave of the virus strikes this winter.

Hospitals, nursing homes and other employers, for example, regularly work health care professionals to the bone despite the danger that understaffing poses both to workers and patients.

Across the country, tens of thousands of patients and workers died after contracting COVID-19 in nursing homes. And although employers had months to fill vacancies and resolve other problems affecting care during the pandemic, workers in these virus hotspots still face severe staffing shortages, lack of PPE or both.

“It’s challenging and it’s stressful,” explained Lynair Gardner, unit griever for USW Local 7898, which represents certified nursing assistants (CNAs), dietary and environmental services workers and other staff members at Prince George Healthcare Center in Georgetown, South Carolina. “But you’re there for people who can’t help themselves. Sometimes, you have to put that compassion first.”

CNAs at the facility took on extra responsibilities when the pandemic hit, such as distributing linens and cleaning up after meals to reduce residents’ contact with environmental services and dietary staff members.

Sometimes, Gardner said, she and her colleagues maintain such a grueling pace that they work through their scheduled breaks without even realizing it.

Instead of recognizing their sacrifices, however, the nursing home insists they work longer hours because of understaffing and give up the flexibility with shift scheduling they long had.

Gardner’s colleagues need to be protected from burnout. But they just as desperately want to be valued by a corporate employer that takes them for granted.

“Just show some respect,” Gardner said, “and treat the employees like you’re really thankful for us.”

Rather than fortify workers for the long fight against COVID-19 that remains ahead, employers flout coronavirus guidelines and retaliate against those who challenge safety lapses. And instead of using its power to safeguard the heroes on the front lines, the federal government helps facilities silence their voices.

Forced to share disposable gowns during the pandemic, three workers at a New York senior-living facility discussed the danger among themselves before one wrote a letter to management citing the infection risk that the requirement posed. The facility responded by firing them.

Donald Trump’s anti-worker National Labor Relations Board (NLRB)—acting through its general counsel, Peter Robb, who has pursued an agenda of undoing generations of cases favorable to workers—sided with the nursing home.

The NLRB dismissed the workers’ unfair labor practice charge after determining their efforts to safeguard their health failed to qualify as protected, concerted activity under federal labor law. The board strained to conclude there was no evidence of “group concern” in the workers’ actions. As a result of that case, health care workers across the country will be less likely to challenge safety risks even as the number of COVID-19 deaths continues to climb.

Since the pandemic began, the USW and other unions representing health care workers successfully forced many employers to adopt more stringent infection-control practices that protected staff and patients alike.

USW Local 9899 President Jackie Anklam pushed Ascension St. Mary’s Hospital in Saginaw, Michigan, to provide more respirators and gowns to workers caring for patients.

She also demanded better supplies for those cleaning the facility. When hospital managers tried to scale back the procedures for sanitizing rooms occupied by patients with infectious diseases, Anklam told them, “Then you go in there.”

Now, another NLRB case threatens that life-saving advocacy.

The agency dismissed another unfair labor practice charge after the general counsel’s office determined that a concrete company could refuse to bargain with union members over sick leave and hazard pay because the parties were in the middle of a contract.

To the NLRB, it didn’t matter that the pandemic had drastically changed working conditions, exposed workers to new risks requiring contract adjustments or created the need for their union to bargain about rights and benefits that couldn’t have been imagined months earlier. The decision potentially means employers in many industries, including health care, will refuse to bargain with workers on critical issues, such as COVID-19 safety practices, while contracts remain in place.

Anklam fears hospitals and nursing homes now will say, “It’s our way or no way,” when unions demand changes to protect staff and patients.

Already, far too many health care employers ignore workers’ concerns while exploiting their professionalism and compassion to keep them on the job.

Ford and his co-workers, for example, take great pride in collecting the blood that not only makes life-saving transfusions available virtually everywhere but also helps to advance research into public health dangers, like COVID-19.

He just wishes the wave of support Americans showed for health care workers at the beginning of the pandemic lasted as long as the health crisis itself and forced employers to make real, permanent changes in worksite safety.

Instead, health care workers perform ever more difficult jobs than they usually do—all without the proper equipment, support or attention they need to keep themselves and their patients safe. For too many Americans, health care workers are out of sight, out of mind.

“It’s back to business as usual,” Ford said.

This article was produced by the Independent Media Institute on September 8, 2020. Reprinted with permission.

About the Author: Tom Conway is the international president of the United Steelworkers Union (USW).


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What are the best and worst states to work in during the coronavirus pandemic?

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The coronavirus pandemic has dealt blow after blow to U.S. workers. The two biggest: Unemployment is sky-high, and many of the jobs that are left are suddenly unsafe. 

But as with so many things, from minimum wage to paid sick leave to enforcement of existing laws, how bad workers have it varies dramatically from state to state. Now, you can find out how your state ranks on labor protections in the era of COVID-19, thanks to a new report from Oxfam America. Oxfam ranked states by worker protections, healthcare, and unemployment, coming up with an overall ranking that puts Washington State, New Jersey, and California at the top, and Alabama, Missouri, and Georgia at the bottom.

At $275, Alabama’s maximum unemployment benefit is only a little higher than the minimum of $240 in Massachusetts—and in Puerto Rico, the maximum is just $190. But that’s not the only way Alabama is committed to hurting working families: “Alabama has no moratorium on evictions or utilities being shut off; no mandated paid sick or family leave; and no requirements for personal protective equipment for workers. In addition, the governor issued an executive order to protect businesses and health care providers from lawsuits resulting from COVID-19.”

Oxfam America is calling on states to:

  • Improve worker protections to ensure paid sick time, paid family and medical leave programs, and childcare for all workers
  • Expand Medicaid
  • Increase unemployment payments

Regardless of what state you live in, employers are going to vary in how much they’re doing to protect workers’ safety. The AFL-CIO has a new checklist to determine how safe you are at work, with information about workplace safety—including how to organize for it.

This blog originally appeared at Daily Kos on September 7, 2020. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006. Full-time staff since 2011, currently assistant managing editor.


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