August 12, 2020, Today, the Department of State updated its guidance regarding who is exempt from Presidential Proclamation 10052, commonly referred to as the H-1B or L-1 Travel Ban.
In a step in the right direction, 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.” The government has seen the light that forcing employers to replace existing employees may cause financial hardship.
So, if your I-129 petition was filed to request “b. Continuation of previously approved employment without change with the same employer” (in other words, an H-1B or L-1 extension), then the Department of State will be able to issue an H or L visa to you as consulates are able to slowly reopen.
In addition, new factors have been set forth to also allow H-1B visas to be issued when at least TWO of the following criteria are met:
1. Cases where an LCA 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 U.S. 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 United States, this criteria cannot be met.
2. Senior level placement within the company OR unique and vital job duties OR specialized qualifications with significant and unique contributions when the employer is meeting a critical infrastructure need. 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.
3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA).
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. 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.
5. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer. The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.
For example, if your LCA was approved in August 2020 for a position that cannot be performed remotely AND your H-1B was filed for a position with a salary offer that is at least 15% above the prevailing wage, you would meet two of the criteria and qualify to receive an H-1B visa.
Another example could be where the H-1B worker’s unique experience demonstrates that he or she will perform critically important work for the employer AND the employer would not be able to meet contractual obligations without you, you would meet two of the criteria and qualify to receive an H-1B visa.
In addition, new factors have been set forth to also allow L-1A visas to be issued when at least TWO of the following criteria are met:
1. Will be a senior-level executive or manager;
2. Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
3. Will fill a critical business need for a company meeting a critical infrastructure need. Critical infrastructure sectors include 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.
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 U.S. workers.
In addition, new factors have been set forth to also allow L-1B visas to be issued when all THREE of the following criteria are met:
1. The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
3. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.
Applicants who are subject to any of these Proclamations, but who believe they may qualify for an exception, should follow the instructions on the U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception. The applicant must first be approved for an emergency appointment request and then a final determination regarding visa eligibility will be made at the time of visa interview. Please note that U.S. Embassies and Consulates may only be able to offer limited visa services due to the COVID-19 pandemic, in which case they may not be able to accommodate your request unless the proposed travel is deemed emergency or mission critical.
http://immigrationgirl.com/h-1b-l-1-travel-ban-update-on-exemptions-for-those-seeking-to-continue-employment-with-the-same-employer/