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Comments by Sanwar Ali:
These changes, representing quite a significant climbdown by the Trump administration, should help many people. The Trump work visa ban will still have a profound affect on businesses and their employees around the World. The changes will benefit H1B visa, L1A visa, L1B visa, H2B visa, J1 visa applicants and their dependents. L1A visa applicants applying for entry as senior level executives and managers filling critical business needs will in many circumstances now be allowed entry to the US. Highly paid and higher skilled H1B visa applicants meeting a critical infrastructure need, as well as higher skilled L1B visa applicants may also be allowed entry. Full details can be found on the State Department website. We will provide a more detailed analysis soon.
According to a US State Department announcement, H1B and L1 visa restrictions have been eased. The State Department said: “H1B and L1 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.”
The move is set to benefit a number of Indian IT professionals and the US healthcare sector. Following Trump’s work visa ban, which came into effect at 12.01am on June 24, exemptions have now been applied for certain H1B and L1 visa holders and their family members, plus specific J1 visa categories.
Trump’s work visa ban blocked US entry for thousands of workers across several key non-immigrant visa categories. The Trump administration argued that allowing in more foreign workers would limit job opportunities for American workers, with millions of US citizens left out of work because of the coronavirus pandemic.
National interest category
The State Department announced that exemptions had been introduced under the ‘national interest’ category. The Statement Department said: “Forcing employers to replace existing international employees with American workers may cause financial hardship.”
Health sector workers with H1B visas, including those who have been on the frontline in the fight against COVID-19 or working in medical research that has huge public health benefits, such as curing cancer and other diseases, have also been made exempt from Trump’s controversial work visa ban.
Over the past few weeks, lawmakers have written to US Secretary of State, Mike Pompeo, urging him to exempt healthcare workers from H1B, J1 and L1 visa restrictions.
The State Department said: “Further new factors have been outlined that allow H1B visas to be issued, provided that five key indicators are met.”
The five key indicators include:
1. A petitioning employer has a requirement for services or labor to be carried out by an H1B non-immigrant in the US. For cases where a Labor Condition Application (LCA) was approved on or after July 2020, or if an LCA was approved prior to July 2020, a consular officer must be able to establish from a visa application that there is a continued need for the employee by the US employer.
“If an applicant is currently performing or is able to carry out the required duties of a job role for the employer remotely, outside of the US, this condition cannot be met” the State Department said.
2. An applicant’s job role within a company making a petition must be significant and unique to the employer and meet a critical infrastructure need.
The State Department said: “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.”
3. The salary paid to the H1B visa applicant must exceed their current wage by a minimum of 15 percent. The State Department said: “If an employee is receiving a salary that meaningfully exceeds the prevailing wage, it indicates that the employee fills an important business need where an American worker is not available.”
4. The H1B visa applicant’s education, training and experience indicate a high-level of expertise in the specialty occupation for which they are hired.
“As an example, an H1B 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,” said the State Department.
5. Denying an H1B visa will lead to financial hardship for an American employer.
L1 visa exemptions
The exemptions applied to the L1 visa category are similar in some respects to the H1B visa programme. The State Department said: “L1A visa 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.”
National interest exemptions will be applicable to the dependants and spouses of H1B, L1 and certain categories of J1 visa holders, the State Department confirmed. This will include H4, J2 and L2 visa categories.
Indian IT industry body, Nasscom, welcomed the exemptions, saying: “We remain ‘cautiously optimistic’ – as caveats in the DoS guidance about seniority, unique and significant contributions and/or other factors that go along with the exceptions still allow a lot of leeway in interpretation of the new guidance.”
“The impact can only be gauged over the course of time. That said, we believe this is a step in the right direction and encourage the implementing agencies to ensure US businesses’ access to critical talent is not hampered,” Nasscom added.
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