On August 12, 2020, the Department of State updated guidance for admitting H-1B or L-1 visa holders into the U.S. after President Trump’s travel ban.
H-1B and L-1 visas can now be issued to employees who are “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification,” better known as an H-1B or L-1 extension.
The Department of State would issue an H or L visa if you filed an I-129 petition to request “continuation of previously approved employment without change with the same employer,” as Consulates reopen.
H-1B Visa Restrictions Eased
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Additionally, H-1B visas may now be issued when at least two of the following criteria have been met:
- If the LCA was approved during or after July 2020, it, in itself, demonstrates a continued need for the services or labor performed by the H-1B holder. If the LCA was approved before July 2020, the consular officer must determine from the visa application the continued need of the employee by the U.S. employer. However, the above criteria cannot be met if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States.
- Senior-level placement within the company or unique and vital job duties or specialized qualifications with significant and unique contributions when the employer is meeting a critical infrastructure need. Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.
- The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.
- The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation 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.
- Financial hardship for the U.S. employer could include:
- the employer’s inability to meet financial or contractual obligations;
- the employer’s inability to continue its business; or
- a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.
L-1 Visa Restrictions Eased
There are also new factors allowing L-1 visas to be issued when all three of the following criteria are met:
- The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
- The applicant’s specialized knowledge is specifically related to a critical infrastructure need; and
- The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause financial hardship to the employer.
Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa application appointment at the closest embassy or consulate and a decision will be made at the time of interview as to whether the traveler has established that they are eligible for a visa under an exception. Travelers are encouraged to refer to the embassy/consulate website for detailed instructions on what services are currently available and how to request an appointment.
Applicants for immigrant visas covered by Presidential Proclamation 10014, as extended by P.P.10052, including Diversity Visa 2020 (DV-2020) applicants, who have not been issued an immigrant visa as of April 23, are subject to the proclamation’s restrictions unless they can establish that they are eligible for an exception. No valid visas will be revoked under this proclamation.