A Look at the Latest Exemptions to Trump’s Travel Ban

By: Rachel Horner

Proclamation 10052, also known as the H-1B or L-1 Travel Ban, was enacted in August as a response to the coronavirus pandemic. However, the Trump Administration has relaxed restrictions and created several exemptions. Want to know who’s exempt? Read below.

Those Applying for the Same Position with the Same Company

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.”

Healthcare Workers

Those who are working within the healthcare sector, especially on the frontlines for the battle against COVID, and other deadly diseases, like cancer, are exempt from the travel ban.

H1B Visa Criteria

Broadly speaking, the present criteria for H1B visas can be broken down into three main ideas: financial implications, exceptionality of the candidate, and how necessary the candidate’s services are to the organization in question. The easing of prior restrictions will now place stronger consideration as to whether or not a business’s financial outlook can withstand the possible denial of a candidate’s visa—and whether such a decision would possibly harm an industry that is currently thought of as essential to the United States’ overall health as a nation.

Specifically, it is required that candidates meet at least 2 of the below 5 points of criteria:

1. The candidate’s skills prove essential/necessary for their employer, and had an LCA approved during or after July 2020. For LCAs obtained before July 2020, the visa application must show why the foreign national is still needed by their employer. This criteria is null if the visa applicant can currently perform their job duties from outside the United States.
2. Their employer is meeting a critical infrastructure According to the State Department, “Critical infrastructure sectors include chemicals, 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.” In order to fulfill this criteria, the candidate must also either hold senior-level placement, significant and unique job duties, or specialized qualifications.
3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.
4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed – e.g., the applicant holds a doctorate or professional degree related to the position or possesses many years of relevant work experience.
5. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer. For example, the employer will be unable to meet financial or contractual obligations, continue its business, or delay the employer’s ability to return to its pre-COVID-19 level of operations.

L1A Visa Criteria

Applicants seeking L1A visas signifying managerial capacity, meanwhile, must meet 2 of the 3 criteria below. When a visa applicant meets a majority of this criterion, it shows USCIS the significance of the individual within their workplace — they hold a high-ranking position and have spent a significant portion of time within the company, something that cannot easily be replaced. If they were unable to resume to their position, their knowledge and skills could not easily be replicated by another employee.

1. The applicant will be a senior-level executive or manager.
2. The applicant has spent multiple years with the company overseas, which shows substantial knowledge and expertise within the organization. This can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.
3. The applicant will fill a critical business need for the employer, who meets a critical infrastructure need in a designated industry (as written above.)

L1B Visa Criteria

Similarly to L1A visas, the L1B criteria shares the need for applicants to have logged the necessary experience at one of an employer’s foreign worksites; and also mandates that they are fulfilling a critical need within a business, that cannot be easily attained through training a different individual. The primary differences, owing to this visa’s signification of “specialized knowledge,” lies in the fact that a candidate must make unique contributions to an organization. Further, all 3 of the below criteria must be met, as opposed to a mere majority.

1. The applicant’s will provide significant and unique contributions to their company, as indicated by the proposed job duties and specialized knowledge the individual holds.
2. The applicant’s specialized knowledge is directly related to a critical infrastructure need (as explained above).
3. The applicant has spent multiple years with the company in a NON-US location. This supports the argument that they hold substantial knowledge and expertise within the company. If the petitioner was to try to replace the applicant with new employee, the process would require an extensive amount of time and financial resources in order to train the new employee, therefore leading to economic hardship for the company. This specific criterion can also be seen in the L1A requirements.

Implications Going Forward

Those who feel they meet these criteria must be approved for an emergency appointment request. If approved, they can then move on to a visa interview which will determine their eligibility. If the visa applicant is granted an exception, the applicant’s spouse and dependent children will also benefit.

It is important to note that the wait time for a response is longer than usual because of the high volume of cases, backlog, and limited appointments due to COVID-19. In addition, even if an applicant meets the criteria for a given visa, they are not guaranteed an appointment or approval of their application.

As an operations analyst and proofreader at Park Evaluations, Rachel Horner reviews and edits evaluations for consistency and coherency, and ensures quality content is produced for the clients. During her free time, she likes to ride her bike and spend time with her shih-tzu, Callie.

CITATIONS

immigrationgirl.com/h-1b-l-1-travel-ban-update-on-exemptions-for-those-seeking-to-continue-employment-with-the-same-employer/

www.fragomen.com/insights/alerts/state-department-broadens-national-interest-exceptions-nonimmigrant-entry-ban-h-1b-and-l-1-employees