H1B and L1 US Visa Entry Ban Exceptions from August 2020 - Trump EO

H1B, L1 US Entry Ban News – New Exceptions for Stamping, Travel (Aug 2020)

In H1B Visa by KumarUpdated : 141 Comments

As most of you know, on June 22, 2020, Trump issued a Proclamation banning entry of H1B, L1 and other visa holders who present risk to US  labor market. There were some amendments done and clarifications provided after initial order to allow certain dependents.  There were few lawsuits filed on this entry ban, including support by Google, Apple, Facebook on the impact to US economy with this ban. All of these seem to have triggered this update.  

Today, US Department of State, updated their National Interest Exceptions guidance on the H1B, L1 and other visas entry ban. It added many new exceptions and gave new criteria that allows many H1B, L1 and other visa holders to apply for US visa stamping. We will cover all those details in this article. In interest of our audience, we focus only on H1B, L1, H4 & L2 visas exceptions.

Background: If you are looking for background, current status on the Trump Executive Order/ Proclamation on the US entry ban for H1B and other visa holders, you should read : COMPLETE Details on Trump Travel Ban – H1B, L1

Previous Visa Stamping, Travel Exceptions are still Valid : Firstly, the previous exceptions of executive order continue to be valid.  In short the previous guidance is : if you were in US on June 24 or had valid H1B or L1 visa on the same date; or you fall under national interest, like you were doing anything related to COVID-19 pandemic or critical medical research; or US Govt or defense related critical work, then the executive order or proclamation does not apply to you and you can get US visa stamping, enter US.  

Below are the various new exceptions and criteria that are listed by US Department of State. We will group them by visa type for easy review.

H1B Entry Ban New Exceptions – Extensions, Criteria List

Below are the new additions and clarifications for H1B visa holders from today’s update

H1B Travel Ban does not apply to Extensions

If you were working in US on H1B extension with same employer and same job role and stuck out of US due to travel restrictions, now you can get US Visa stamping. They classify this as “resuming ongoing employment”. US Consular officers will look at form I-129 Part II, question 2 to verify if it was an extension. See below screenshot on the exact field.

Option B - H1B Extension - I129 form
Form I-129 for H1B Extensions – Same employer, Same Job

H1B Holders new criteria to get US visa stamping, US entry

If you are a classified as technical specialist, senior level manager or any other H1B worker, whose travel is necessary to help US economy recovery then US consular officer would determine based on below criteria. You NEED to meet at least TWO of the FIVE listed criteria below.

Criteria 1 : Continued Need for H1B holders, Remote Working:

They want to ensure, that there is continued need for your work or position in US during COVID-19 pandemic. For that they will check H1B LCA approval date. If your H1B Labor Condition Application(LCA) was approved by DOL during or after July 2020, then indicates the continued need for business during COVID-19. 

If the H1B LCA was approved before July 2020, then Consular officer would review on case by case basis to understand need and make decision. If you can perform the work remotely from outside US, then you do not qualify for this indicator or criteria point.

You can also watch the below YouTube video, it covers all details in article

Criteria 2 Critical Infrastructure Sectors, Need :

The H1B holders job duties fall under critical infrastructure sectors and meet critical infrastructure need. The critical infrastructure need is established, if the applicant holds either of the below two positions

  1. Senior level resource in the company and the job duties are unique and needed for management and success of overall company; OR
  2. The H1B applicant’s job duties are really specialized and provide significant and unique contributions to the company

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.

If we look closely, this criteria is subjective and US Consular officer has discretion to make a judgment. The company need to give justification on H1B holder’s importance to the job.

Criteria 3 – Wage Level is at least 15% more than Prevailing wage

If the wage or base salary given to H1B holder is above the prevailing wage level by at least 15% as listed on LCA, then they H1B holder will meet this criteria.

  • You need to check Part F, Questions 10 and 11 on H1B LCA. Check this Sample H1B LCA at Microsoft  that clearly exceeds prevailing wage by 15%. See below screenshot.
  • You can Search, View LCA by case number on H1B Grader LCA Search or even Browse LCAs by company to know your LCA related wages.
Sample H1B LCA with Wage more than Prevailing Wage
Sample H1B LCA with wage rate that is at least 15% more than Prevailing wage

 Criteria 4 – Unusual Education, Training or Experience

  If the H1B holder has unusual experience or education in speciality occupation, then they would meet this criteria. Some of the examples that can indicate your unusual experience or education is to have a doctorate or professional degree, or you have many years of relevant work experience and your work is really critical work to the H1B sponsor.

Criteria 5 – Financial hardship for US employer

If the H1B holder cannot arrive in US and work, there will be financial hardship for US employer. In such cases, those H1B holders would meet this criteria.  US Consular officer would review, if the company has any financial or contract obligations that they need to meet for this ;or if the employer cannot do business;  or they cannot go back to pre-COVID level of operations without H1B employee.  Below are just some general examples. It is the consular officer who would assess these and make a decision.

  • For instance, let’s say you are working in a client contract that needs you to work from US soil and if you cannot go back and work in US, the employer would lose their contract and have financial hardship.
  • Another example is, if you are in health care or Govt contracts and they want the H1B worker to be in US for managing their infrastructure or do work with them. No remote work possible and the employer would lose the contract or cannot do any business.

L1A Visa Holders US Entry Ban – New Exceptions

Below are the new additions and clarifications for L1A visa holders from today’s update

  • Resume on-going employment as L1A: If you plan to go back to US to resume work at the same employer in the same position and on same L1A visa, then you can get US visa stamping and travel to US.
  • Critical Business Need in Critical Infrastructure Sectors: Similar to above H1B criteria 2, the L1A holder should do critical business need work and be part of the critical infrastructure sectors. The L1A holder NEED to meet TWO of below THREE criteria and does not plan to establish a new office in US.
  • In a senior level executive or manager position
  • Has spent multiple years in the company at their overseas office. The person has substantial knowledge and experience with the company. The company will face financial loss to train a similar worker in the company, instead of the experienced L1A holder.
  • Will meet critical business need for company that is part of critical infrastructure sectors.

Also, if the L1A holder is planning to establish new office in US and meets two of three above criteria, then the new office should also employ directly or indirectly five or mor US workers to meet the criteria for getting US visa stamping and entry.   

L1B Visa Holders US Entry Ban – New Exceptions

Below are the new additions and clarifications for L1B visa holders from today’s update

  • Resume on-going employment as L1B: Similar to above, if the L1B holder plans to resume work at the same employer in the same position and on same L1B visa, then they can get US visa stamping and travel to US.
  • Technical Expert – Critical Infrastructure Need: The Technical expert on L1B visa would assist critical infrastructure need and has to meet ALL of the below THREE conditions to satisfy this criteria to get Visa stamping and travel to US.
  • L1B holder’s job duties and specialized knowledge will provide significant and unique contributions to the company.
  • The L1B holders specialized knowledge is related to critical infrastructure need ( see above H1B Criteria 2) and
  • The L1B holder has worked for multiple years at the company outside of US that indicates substantial experience and knowledge. Also, the company would face financial hardship, if they want to train a similar worker in the company instead of the experienced L1B holder.

 H4, L2 Visa Holders US Entry Ban – New Exceptions

As long as the primary H1B or L1 visa holder qualifies for any of the above exceptions and can get Visa stamping, then their dependents on H4 Visa or L2 Visa can get stamping and enter US as well. All the previous exceptions for H4, L2 visa holders continue to be in place.

Process to get US Visa for H1B, L1, H4 or L2 Visa holders

Firstly, most US consulates are not open for regular operations. Many are open only for Emergency Appointments. You can check US Consulates Open Status, India Consulates  Updates . Now, if you qualify for any of the above listed National Interest Exceptions as H1B, L1 or their dependents, then you need to follow the below process to get US Visa Stamping/ foil in passport.

  • You need to follow the guidance given by the US Consulate in your current country and request for emergency appointment.
  • You will need to provide specific details in the emergency appointment request on why you qualify for the emergency appointment. Ideally, you should provide documentary proof or evidence that indicates why you meet the National Interest Exception and qualify for emegecny appointment.
  • The final determination on your eligibility for National Interest Exception would be made by the consular officer. So, until your visa stamping is done, there is no guarantee that you will get US visa stamping.

You can read two of our recent User Experiences on getting Emergency Appointments in India for US Visa stamping based on Medical reasons.  You can also join Telegram Community Group for US Travel Ban, if you want to interact with community.   

What do you think of the update from US State Dept ?  Does it help many stuck waiting ? Add your thoughts in comments

   

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Comments ( 141 )

  1. Ram

    I have a situation, I am on L1b and valid till 12/2021 with compay ABC . I got my H1B lottery selected in second round with consultancy X and they have applied for COS now. It’s in progress . Company ABC is ready to sponsor Green card now and H1B CAP petition on next year. I am still USA.

    What is the right solution to stay back on my L1b ?

    1. administrator
      Kumar

      Ram,
      Well, the easy fix is to exit the country and then re-enter on L1…in that way it will abandon the change of status part of the same. Check with your attorney before you travel.

  2. Rahul Kumar

    Currently I am in US and have L1 visa valid till Dec 2021. My H1B is also approved (with consular notify).
    Can I go to India with current L1 visa and come back with it without H1B stamping, as embassy is not taking regular stamping appointment as of now?

  3. Maria

    Hi. I am in L1A and my visa stamp expired so I haven’t been able to travel home, my blanket is still valid and I am in the same company and all is the same so I am good to work but cannot travel international. What can I do yo get a new stamp? I really want to see my family. The embassy is only open for tourist visas. Thank you.

    1. administrator
      Kumar

      Maria,
      This is unfortunate situation for many stuck. There is not much we can do, other than waiting for the consulates to open for regular visa operations.

  4. Srisrisri

    Hi,
    I am planning to travel to India and I can plan to stay upto April 2021. If the regular visa is not opened by the time, Am I eligible to request for Vis stamping based on the below criteria. As I am in the same company from last 2 extensions.
    “Travel by applicants seeking to resume ongoing 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 financial hardship. Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”

    1. administrator
      Kumar

      Srisrisri,
      Yes, should be fine. Hopefully the Executive order will be taken out by the new administration and we do not have to deal with them anymore.

      1. Ak

        Hi Kumar.
        Can someone get visa stamping before December 31st 2020 with below conditions:
        1. Who was not in US on June 24.
        2. Who is continuing with same employer and who got new petition approved with consulate approval for continuation of same job with same employer,
        3. LCA was approved after July 2020.

        or do we still need atleast two criterias from your list of 1-5 list?
        I understood if I am same employer then i don;t need to fulfill any other criteria of 1-5 you gave.. Correct or not?

        Thanks in advance..

  5. Harp

    Usual process. Answered the interview waiver questions and it told me I am eligible for dropbox. It gave me few dates though the slots were limited. This was back in the third week of September.

  6. Harp

    I submitted my passport through Dropbox process in the last week of September 2020 and 6 weeks later still waiting for the visa application to be processed. I qualify for exemptions to pp10052/ October 1 NAM vs DHS case as my employer is a member of US Chamber of Commerce. Sent the documents to the support-india at ustraveldocs and nivnd at state dot gov emails. VFS told me they have also forwarded my documents to the consulate.

    Anyone else who is in the same situation or submitted their passport through the Dropbox process and is waiting / has received their passport with visa?

        1. Mallanagouda Patil

          How did you schedule dropbox ? I am eligible for dropbox but when I am trying to schedule interview it says no interview slots available.

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