After Joe Biden chose Indian-origin Kamala Harris as his running mate to woo the Black populace and the Indian American community at the same time, the electoral clime is heating up for the presidential hot seat. In a move propelled by the indirect impact of the Trump-Biden standoff, the White House announced ‘national interest exemptions’ to Donald Trump’s Presidential Proclamation 10055 that blocked the entry of certain US employment visa holders, including H1B visa workers, to save American jobs for the locals.
Forced replacement of existing employees on non-immigrant visas may cause financial adversity to US employers, the State Department said. In a revised travel advisory for non-immigrant foreign workers, the US Department of State announced certain exemptions to the Presidential Proclamation 10055, allowing issuance of H1B and L1 visas to those who are “seeking to resume ongoing employment in the United States in the same position, with the same employer and visa classification.”
In response to the lawyers who wrote to the Secretary of State, seeking exemption of the healthcare sector from President Trump’s travel ban on H1B, L1 and J1 visas, foreign nationals employed in the US healthcare sector are now allowed to travel back to the United States. Especially, those on H1B in the sectors related to the ongoing global health crisis are exempted from the ban on entry to the US.
The new factors determining the urgency of issuing H1B visas include whether the petitioning employer has a continued need for the skilled foreign labor to deliver on the services in the US. The onus of determining a US employer’s dependency on H1B employees, based on the visa application, falls on the consular officer, if Labor Condition Applications were approved before, during or after July 2020.
Another factor determining the issuance of H1B visa to foreign individuals is whether the position/job requires them to significantly contribute to the petitioning employer’s critical infrastructure needs related to defence, energy, healthcare, information technology, chemical, dams, heavy engineering, transport, finance, nuclear reactors, etc.
The third indicator determining the need of issuing H1B visas is the wage paid to a foreign worker under the H1B visa program. If the wage offered by the petitioning employer exceeds the prevailing remuneration for H1B professionals by at least 15%, it indicates that the foreign labor meets the business need that an American is not able or available to cater to.
According to the US government’s revised travel advisory for non-immigrant foreign workers, an H1B applicant’s academic qualification, skills, training and experience should demonstrate a high level of expertise in the specialty occupation that he/she will be employed for. At the same time, it should be established that the visa denial to an H1B applicant having a PhD degree and/or several years of work experience relevant for the position/job will incur financial loss to the petitioning employer in the US.
The exemptions to the Presidential Proclamation 10055 for L1 visas are similar to that for H1B visas. L1A applicants looking to open a new office in the US are not eligible for the exemptions. Those on L1A visa can travel to the United States if they hire five of more Americans for direct or indirect services.
The national interest exemptions to President Trump’s travel ban on foreign workers can be availed by spouses and dependent children on H4, L2 and J2 visas. Check the available exemptions from the US visa ban for spouses and children of principal US employment visa holders.