Broadened National Interest Exception for Qualified H-1B/ L-1 Visas

The Department of State (DOS)  announced further relaxations on 8/12/2020 regarding President Trump's ban on H-1B/L-1 visas. 

One major exception is allowing H-1B and L-1 applicants who "resume ongoing employment in the U.S. in the same position with the same employer and visa classification" to be issued an H or L visa. This typically covers H-1B and L-1 employees who are extending their work authorization with the same employer in the same position. 

What about the H-1B workers who are applying for new employment, changing position or employer, and L-1A applicants who are establishing a new office in the U.S.? 

Alternatively, an H-1B applicant may be eligible for a visa if TWO of the following criteria are met:

1) The employer has a continued need for the services or labor to be performed by the applicant in the U.S. 

Consulate officers will look at Labor Condition Applications (LCAs) to determine if this criterion is met. If an LCA is approved during or after July 2020, it is an indicator itself showing that the employer still needs the H-1B worker. For applicants with an LCA approved before July 2020, Consulate Officers need to look that the complete visa application to determine if the continuous need from the U.S. employer is established. However, if the essential functions of the H-1B position can be done from outside the U.S., this criterion is not met regardless of when the LCA was approved. 

2) The U.S. employer is meeting a critical infrastructure need and the H-1B worker will provide significant and unique contributions to the employer. 

This is a two-prong test. First, the H-1B worker must either in a senior-level position, or provide a service that is unique and vital to the management and success of the employer, or has special qualifications that will provide significant and unique contributions to the U.S. employer. 

Critical infrastructure sectors includes 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. 

3) The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage as provided in the LCA at least 15 percent. 

4) The applicant's education, training and/of experience shows unusual expertise in the specialty occupation in which the applicant will be employed. 

According to the DOS, the applicant can be a doctorate or professional degree holder, or have many years of relevant work experience to demonstrate the advanced expertise. 

5) Evidence to show that the denial of visa under the Presidential Proclamation will cause financial hardship to the U.S. employer. 

For L-1A applicants, a visa may also be issued when at least TWO of the following requirements are met:

1) Will be a senior-level level executive or manager;

2) Has spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

3) Will fill a critical business need for employer relating to a critical infrastructure need. 

For L-1B applicants, if they are not staying with the same employer and same position, they need to fulfill the following requirements before they are able to get a visa:

1) the applicant will provide significant and unique contributions to the U.S. employer; 

2) the applicant's specialized knowledge is specifically related to a critical infrastructure need; AND

3) the applicant spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

The broadened exceptions for H-1B and L visa applicants are positive news. But these exceptions present new requirements that are not easy to fulfill. The pandemic-related travel bans and delayed reopening of the worldwide U.S. Embassies and Consulate Offices are also making it harder for the foreign workers to go back to the U.S, even if they can benefit from these exceptions. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)