Restrictions on H1B Visa Holders Relaxed

On June 22, 2020, President Trump made an executive order, now generally referred to as the H1B visa ban. In terms of this order, specific nonimmigrant visa categories such as the H1B and L1 visa categories weren’t allowed to enter the United States. It also suspended new visas from being issued in these visa categories.

As soon as the announcement was made, it was followed by an uproar from the immigration community as well as many large tech companies like Facebook and Microsoft, who rely on skilled foreign workers. As a result, the Department of State has announced certain relaxations and exceptions to the H1B visa ban. 

We take a look at these exceptions and whether you may qualify to enter the United States again, below.

What is the June 2020 H1B Ban?

On June 22, 2020, President Trump issued a presidential proclamation (or executive order) that restricted foreign nationals on H1B, L, H2B, or J visas from entering the United States if they were outside the U.S. at the time the order came into force. It also suspended new green cards and visas, such as the H1B visa from being issued.

The H1B visa ban is currently set to last until December but can be extended or amended.

Why Was the H1B Ban Created?

President Trump said the reason for his executive order is to protect American jobs and the U.S. labor market. The COVID-19 pandemic has severely impacted the U.S. economy and left many Americans jobless. The U.S. unemployment rate reached a record of 14.7% in April 2020. According to Trump, by restricting these visa categories, more jobs will be available to Americans.

Unfortunately, even though this is stated as the reason for the ban, little economic data supports the point. As a result, many companies and immigrant groups have filed lawsuits against the H1B visa ban.

What Are the New Exceptions to the H1B Ban? 

The U.S. Department of State has loosened some of the restrictions of the H1B visa ban. Some nonimmigrant visas like L1 and H1B visa holders will qualify for an exemption and will be able to enter the United States again. Dependent spouses and children on visas such as H4 visas will also be allowed to return to the United States with the primary visa holder. 

You will qualify for an exemption to the H1B visa ban if any two of the following apply to you: 

• You will be returning to your original job in the same position with the same employer as before.
• You provide vital contributions to the business through your specialized qualifications or knowledge. This has to be a critical infrastructural requirement for the business. You will need to provide documentary evidence of this to convince the consular officer processing your request.
• Your wage must be at least 15% over the prevailing wage rate.
• You must be in a specialty occupation and must have a unique and advanced qualification.
• If your visa is not approved, your employer (the business) will suffer financial hardship, or it will negatively impact a contractual obligation of the business.
• You are a senior-level executive or manager holding an L1 visa.
•  You have spent a substantial amount of time in knowing and understanding the business.
• You are a nonimmigrant visa holder in the medical profession, and you can contribute to the alleviation of the impact of COVID-19 in the United States.
• You are traveling to the United States to meet critical U.S. foreign policy objectives or to support the economic recovery of the U.S.
• You will be aging out of your current immigrant visa classification before the H1B visa ban is over (or within two weeks after that).

You will also qualify for an exemption under the H1B visa ban and be allowed to enter the United States if your Labor Conditions Application was approved after July 1, 2020. If your Labor Conditions Application was approved before July 1, 2020, you will have to convince the consular officer you are a vital member of your team and need to be physically present in the U.S. to adequately perform on your duties before you will be allowed to enter the U.S. 

Why Were Exceptions to the Ban Allowed?

The Department of State relaxed the H1B visa ban after big tech companies like Facebook and Microsoft filed a lawsuit against the H1B visa ban. The Department of State said the reason for certain exceptions being allowed is because replacing certain critical employees will cause financial hardship to businesses.

As a result, “[t]ravel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification” will be allowed to re-enter.

The focus of the exceptions is also on those categories of visas that will help boost the U.S. economy. 

How to Qualify for the H1B Ban Exceptions

If you qualify for one of the exceptions we’ve listed above, you can contact your closest U.S. consulate for an emergency appointment. 

You will have to prepare an application for appeal to enter the United States based on the listed exceptions. It would be safest to have a U.S. immigration lawyer prepare this for you as they will know the intricate details of what is required. In the application, you will have to include documentary evidence proving you fall in at least two of the allowed exceptions. 

At the appointment itself, you will have to convince the consular officer that you fall in the exceptions and should be allowed to enter the United States on those grounds. This will be on your application and the supporting documents you present.

If you are traveling with dependents, make sure you have all their travel documents in order as well. This includes their valid passports and applicable visas. 

Conclusion

Even though the H1B visa ban hasn’t been lifted altogether, the Department of State’s relaxation of certain rules will certainly provide much-needed relief to many visa holders. Many families will be reunited again, and visa holders will be able to return to their jobs and provide for their families. 

If you are a visa holder in one of the restricted categories, consider whether you might fall under the listed exemptions. If so, contact an immigration lawyer and make your case to your U.S. consulate. There is no reason why the Coronavirus pandemic should deny you your American dream any longer. 

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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