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This story originally appeared on The Vertical
For many international entrepreneurs planning to move their businesses to the U.S. or simply file for a visa extension, these are uncertain times. Consular posts are closed around the world and the U.S. Citizenship and Immigration Services (USCIS) have temporarily suspended in-person green card and naturalization interviews. As some domestic offices begin to reopen, USCIS will reduce the number of appointments to ensure social distancing.
Foreign entrepreneurs come to the U.S. on many different visas, including the EB-5 immigrant investor program, the L-1 for intracompany executive transferees, the E-2 treaty investor visa, the O-1 visa for people with extraordinary abilities and many others.
All of these visa categories have different requirements, like hiring employees or renting an office space. Because of COVID-19, many foreign entrepreneurs planning “a big move” haven’t been able to make further investments.
Others, however, feel the window of opportunity has widened. According to Jason Finkelman, an immigration attorney, startups in robotics or those providing solutions in real estate move fast to meet U.S. demand.
In June, USCIS re-introduced premium processing, which is widely used by foreign entrepreneurs. The service, suspended in March, expedites the process to a mere 15 business days instead of the usual months-long process.
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“Trump’s executive order temporarily ‘suspending immigration’ has contributed to the perception that ‘immigration is closed,’” said Joshua Goldstein, founder at Goldstein Immigration Lawyers. But USCIS is still processing new applications.
“We submitted an O-1 visa application in early March just after USCIS discontinued premium processing,” Goldstein said. “I told my client to expect a decision in about six-to-eight months. To my astonishment, his visa application was approved in 23 days.”
Applying for a visa is harder for applicants outside of the U.S. because consulates are shut down and in-person interviews have been delayed. New applicants are getting pushed down the line, leading to longer wait times.
“We are monitoring the situation every day,” said Jordana Hart, the managing attorney with the law firm Hart & Associates. “The consulates will open depending on the situation in their countries: Mexico City, for example, could stay closed longer then Paris.”
Processing times had already increased in the past three years. “Whether you have a cure for cancer or are working on a coronavirus vaccine, it’s just harder to get a visa because the President wants to limit immigration,” said Jason Finkelman.
Although entrepreneurs are the least affected because they are job creators, they also have to deal with extra scrutiny. People on E-2 investor visas who have to travel back and forth for their business report more “questioning” about the time they spend outside of the U.S. “We pay extra attention when justifying our clients’ trips,” said Jordana Hart.
The calls to restrict immigration might get louder because of the looming economic recession, believes Henry Mascia, partner at Rivkin Radler law firm. “Officers are now treating extensions like first time applications, so the renewal process, for example, for an O-1 visa, is increasingly difficult.”
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The election in November adds additional uncertainty to immigration prospects. But there is some good news: An EB-1 extraordinary ability green card is now “current,” meaning it has no backlog and no wait time. “We are preparing green card cases for clients on O-1 who would have otherwise expected to wait several years,” said Joshua Goldstein.
Margo Charnysheva, chair of the immigration practice group at Fennemore Craig, recommends that entrepreneurs not leave if they are currently in the U.S. on a B-1/B2 tourist visa. “Instead, try to change your status to avoid a prolonged wait for an interview at the embassies, because they won’t schedule interviews until mid-June.”
The key in the strict immigration environment is to show that your business has an ability to grow and create jobs. “We push our clients to hire American workers,” said Jordana Hart. Also, preparing your application in advance is crucial. “In the face of so much chaos, you should be proactive,” Joshua Goldstein said. “Don’t wait for the pandemic to end.”
When our firm signed on to an amicus brief in Bostock v. Clayton County and two other cases last summer, we were proud to stand alongside 205 major businesses in expressing the importance of workplace protections on the basis of sexual orientation and gender identity. Last Monday, the U.S. Supreme Court decided 6-to-3 in favor of the plaintiffs in this case, which tested the applicability of Title VII of the Civil Rights Act of 1964 to these critical elements of individual identity and experience.
Certainly, we believed the case to be strong; as Justice Neil Gorsuch noted in the majority opinion, “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Given a shift in the court’s ideological makeup, however, it would be inaccurate to suggest that we expected it to rule in favor of the plaintiffs. This shift was all the more reason, we believed, for businesses to stand firmly in support of what is best for employees, organizations, society, shareholders, and our firms: the removal of a critical barrier to the psychological safety required of productive and meaningful workplace cultures.
As a cisgender, gay CEO of a global leadership firm, I celebrate the notion that this psychological safety—the ability to bring one’s full self to bear healthily and appropriately without fear of retribution or other negative consequences—is a critical element of the best workplaces.
Of course, the mere notion that individuals are legally protected from workplace discrimination on the basis of sexual orientation or gender identity does not, in and of itself, enable psychological safety. Legal protection is a helpful but incomplete precursor to crafting truly hospitable environments for LGBTQ employees and others with historically marginalized identities.
Implicit in the notion of legal protection is the idea that an individual or community is at risk because of some critical aspect of who we are—or what others attribute to those individuals, based on stereotyping or inaccurate perceptions. For LGBTQ individuals, expressing the parts of ourselves that do not align with broader expectations of how we should look, behave, or love based on our assigned sex at birth has often resulted in derision, rejection, exclusion, violence, or just plain silence in the workplace.
But that expression of this essential element of our identities can no longer result in legal termination of employment in the U.S.
The court’s decision has opened the door for leaders to engage with these critical components of identity and culture in a much more sophisticated and powerful way. Rather than operating from a place of legal protection for themselves—that is, treating this latest ruling merely as occasion to conduct antidiscrimination trainings and other risk mitigation activities—employers have the opportunity to reconsider the benefits of identity-diverse workplaces.
Recognizing that the law confers protection on an identity group is humanizing and energizing. When we understand that the most important parts of our identities matter and must be protected at work, we internalize the idea that our work can be a source of the very basic human need for meaning and purpose. Taken in the context of other major events last week—the first broad, mainstream recognition of Juneteenth as a major marker of black American civil rights; a second Supreme Court decision prohibiting the elimination of the Deferred Action for Childhood Arrivals (DACA) program without reasoned explanation; continuing daily protests across the country for equity and justice for black Americans—the impetus for leaders and organizations to cultivate work settings that recognize and harness the power of difference has never been more profound.
Wherever any particular organization presently stands on its journey, there is room for growth, development, and evolution embedded in learnings from the Bostock ruling. For employers who are new to recognizing their lesbian, gay, bisexual, transgender, and queer employees, acknowledging the importance of allowing individuals to bring their full selves to work is an important starting point.
For employers that already celebrate their LGBTQ team members and colleagues, fostering similar celebratory conditions, just treatment, and psychological safety for individuals and communities across a wider range of identity groups creates a reservoir of positive energy in the organization. And for all of us, every day in the workplace (be it physical or virtual) affords the opportunity to demonstrate the kind of meaningful interpersonal connection that affirms our individual and shared humanity—to the benefit of our lives, our organizations, and our communities.