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.
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
- Senior level resource in the company and the job duties are unique and needed for management and success of overall company; OR
- 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.
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