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UPDATE: DOS Issues Guidance on Visa Renewals for H-1Bs and L-1s Under Presidential Proclamation 10052

On August 12, 2020, the Department of State issued updated guidance regarding the issuance of H-1B and L-1 visas in light of Presidential Proclamation 10052, which restricts the entry of certain H-1B, L-1, and J-1 nonimmigrants. The most notable provision within this guidance is the provision that applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification. What this means is that if the I-129 for your H-1B or L-1 extension was filed requesting “b. Continuation of previously approved employment without change with the same employer” then you are exempt from the presidential proclamation.

H-1B applicants with a petition that requested something else (i.e., change of employer, amendment, extension with change), may still be exempt if TWO of the following conditions are met:

  1. The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.  Labor Condition Applications (LCAs) approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, 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, then this indicator is not present.
  2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer 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.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:

    a.)  Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise;

    OR

    b.) The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

  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).  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
  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 L-1A visa applicants, if the current petition did not request an extension without change, a visa may be issued if TWO of the following are met:

  1. The applicant will be a senior-level executive or manager;
  2. 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; or
  3. The applicant will fill a critical business need for a company meeting a critical infrastructure need.

For L-1B visa applicants, if the current petition did not request an extension without change, a visa may be issued if ALL THREE of the following 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.

For derivative visa applicants, if the principal visa applicant (i.e., the H-1B, L-1, etc.) is outside of the scope of the proclamation (i.e., was in the U.S. on June 24, 2020, had a valid visa as of June 24, 2020) or falls into one of the outlined exceptions then the derivative is not subject to the proclamation and is eligible for visa issuance and entry to the United States.

Given the complexity around the Presidential Proclamation 10014, as well as the various exemptions, we recommend any applicant consult with our firm to determine if you meet the exceptions to the proclamation, or otherwise fall outside of the scope of the proclamation.

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