U.S. has announced certain exemptions in the H-1B travel ban. The Trump administration has relaxed some rules H-1B visas that allow applicants currently outside the United States to be considered for a visa if they meet a certain set of criteria, said the U.S. Department of State.
The applicants seeking to resume continuing employment in the US in the same position with the same employers and visa classification will now be allowed as forcing employers to replace them may cause financial hardship, said the US Department of State in a new set of exemptions issued on Wednesday. This move could help Indian IT professionals and those working in the healthcare sector in USA.
This is the first relaxation of rules by the US government since President Donald Trump signed a proclamation on June 22, suspending the entry of certain non-immigrant visa categories like H1B and L1 visas till the end of the year to protect the U.S. Labor Market during the COVID-19 pandemic. The exemptions to the June 22 Presidential Proclamation 10052, commonly referred to as the H-1B or L-1 Travel Ban, also includes the family members of the H-1B, L-1, and certain categories of J1 visas.
The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. Companies depend on it to hire tens of thousands of employees each year from countries like India and China.
The State Department, which issued the revised travel advisory, on Wednesday said that the exemptions have been given under the national interest category. In its advisory, the State Department said that H-1B and L-1 visas can now be issued for employees who are “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.”
Forcing employers to replace existing employees may cause financial hardship, it said.
Notably, in the last few weeks, several lawmakers have written to the Secretary of State to exempt the healthcare sector from the travel ban on H-1B, L1, and J1 visas.
It said that Labor Condition Applications (LCAs) approved by the Department of Labor during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. Labor Market and the petitioner’s business. “Therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker,” said the statement. Further, if the applicant is able to perform essential functions.
New factors have been set forth to also allow H-1B visas to be issued when at least two of the five indicators are met, the State Department said.
First cases the petitioning the employer has a continued need for the services or labor to be performed by the H-1B non-immigrant in the United States. Cases where Labour Condition Applications (LCAs) was approved during or after July 2020 OR if the LCA was approved before July 2020, the consular officer must be able to determine from the visa application the continuing need of the employee with the US employer.
But, 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 US, these criteria cannot be met, the State Department said.
Secondly, the applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.
The new rules allow senior-level employees in critical infrastructure sectors including healthcare and information technology, whose roles are vital to the management and success of the business to get the visas. 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.
Healthcare professionals and researchers on H-1B visas working in the healthcare sector, especially those related to the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit or traveling on a request from a US government agency or to satisfy treaty or contractual obligations will be allowed and are also exempted from the July 22 travel ban. This would include people identified by government agencies as performing research, providing IT support or similar, essential to the agency.
Third, the wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent. They should be paid at least 15% higher than the wage rate would also be considered, provided it is established that denial of the visa would cause significant financial harm to the employer. When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available, the State Department said.
Fourth, the H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed. For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer, it said.
And finally, the denial of the visa will cause financial hardship to the US employer.
The exemptions for L1 visas are mostly similar to that of the H-1b. L-1A applicants seeking to establish a new office in the United States likely do not fall into this category, unless two of the three criteria are met and the new office will employ, directly or indirectly, five or more US workers, the State Department said.
The national interest exemptions are also available to their spouses and depended as well, it said.
These include those on H-4, L-2 and J-2 visas. National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a national interest exception to the presidential proclamation.
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