H-1B and L -1 Visas: Here’s what selected exemptions by Trump govt mean

For the moment there is no silver lining to be found for those seeking a new H-1B visa.

By Nandika Handa

The outbreak of the Coronavirus Pandemic along with this being an election year in the U.S. has led to the U.S immigration scenario being rife with uncertainty. President Trump has been using immigration as a tool to ensure that U.S. nationals are the first ones to have access to jobs that arise in the country. The reasons cited have been a move towards economic recovery and overcoming the unemployment rates that have risen to an all-time high post the pandemic.

President Trump announced a ban on H-1B and L-1 till the end of this year in a series of immigration tight holds earlier this year. In this regard, a proclamation that put this ban into motion was passed on June 22nd 2020. Those who had jobs waiting for them in the US suffered a tremendous backlash. Caught in the situation, were also a lot of people who had exited the country to renew their H-1B or L-1 and also families of these visa holders who had left the U.S for some reason. This led to a lot of families being separated and people who had established a good life for themselves after years of hard work found themselves stranded outside the country.

IT and medical sectors were also hard hit; as they draw upon a talent pool from overseas that cannot be replaced at the bat of an eyelid. This led to major IT firms actually challenging this matter.

Now, after much uncertainty there is some good news for H-1B holders who have found themselves stranded outside the country. There seems to be a silver lining for them at last.

On the 12th of August 2020, an exception to the Presidential proclamations 10052 and 10014 has been passed.

A lot of people in the visa categories that fell under the previous proclamation are asking what the repercussions of this latest exception are:

H1-B visa holders that wish to travel back to an existing job will be allowed to do so -They must go back to the same employer in the same position.

Those deemed technical specialists and senior-level managers or employees and whose travel is considered necessary to facilitate the immediate economic recovery of the U.S will be allowed at the consular officer’s discretion. Additionally, they must satisfy two out of five other criteria listed in the exception.

The synopsis of the criteria is as follows:

The H-1B applicant coming into the country will draw a salary that must be at least 15 % higher than the prevailing wage rate. This has been put into place as a mechanism to ensure that the need for this employee is real and he/ she can’t be replaced by an existing American worker.

Other criteria maybe that the applicant’s duties with his current employer indicate that he will perform functions that will provide significant and unique contributions to an employer meeting a critical infrastructure need.

If H-1B applicant’s education, training and/or experience must establish unusual skill in the profession in which the applicant will be employed.

Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.

For those seeking to go back on L-1 broadly speaking the following exceptions are stated

They can travel back if the area “public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct on-going medical research in an area with a substantial public health benefit”

If they are travelling back based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.

“Travel by applicants seeking to resume on-going employment in the United States in the same position with the same employer and visa classification. Forcing employers to replace employees in this situation may cause undue financial hardship.”

If they satisfy all three criteria stated to travel as a technical expert or specialist meeting a critical infrastructure need.

For H-4, L-4, J-2 applicants National interest exceptions are obtainable for those wishing to join a principal applicant. The principle applicant may be a spouse or parent and who has been granted a national interest exception to P.P. 10052.

For the moment there is no silver lining to be found for those seeking a new H-1B visa. However, many are hoping that the announcement of Kamala Harris (who is of Indian origin) as running mate for Joe Biden and pressure ensuing from the upcoming elections will serve to push the presiding government. It is the hope of a lot of people that this will bring about a change in immigration reforms that have shattered the world of many, post the pandemic.

(The author is an Immigration Specialist. Views expressed are personal).