US eases ban on foreigners returning to same job role – Times of India

Lubna Kably & Shilpa Phadnis | TNN
Mumbai: The US Department of State, in its updated guidelines announced late on Wednesday night, has permitted foreign nationals to seek an H-1B or an L-1 visa and return to the US to resume their previously held employment. In addition, individuals — including those in the information technology (IT) sector — may also qualify for entry to the US under ‘national interest exception’ norms, subject to meeting certain conditions.
Immigration experts believe that the slew of lawsuits against the entry ban on a wide range of visa holders, which had the backing of such US tech giants as Apple and Microsoft, forced the Trump administration to backtrack and introduce relaxations.
These relaxations are a huge relief to hundreds of US job holders who were visiting India for dealing with family emergencies and functions and, owing to the travel ban announced by President Donald Trump on June 22, found that they could not obtain a visa stamp and travel back to the US.
Under the updated guidance, an exception from the travel ban, which remains effective at least until December end, is available to H-1B and L-1 workers who are “seeking to resume ongoing employment in the US, in the same position, with the same employer and with the same visa classification”. The relaxation has been introduced as forcing employers to replace employees in this situation may cause financial hardships, explains the guidance note.
In addition, H-1B or L-1 applicants (the latter visa is used for intra-company transfers) may also enter the US if they qualify for national interest exception. This applies in certain cases, such as for those engaged in battling Covid-19 or those whose roles facilitate economic recovery in the US. Workers across a wide range of industry verticals, which include not merely healthcare but also extend to IT, could qualify for the national interest exception, subject to meeting the set conditions.
Nasscom has welcomed the relaxation. “We have consistently raised the importance of visa holders working within the tech sector, particularly those who would be delivering services designated as essential as per the DHS-CISA guidance,” it said. The Cybersecurity and Infrastructure Security Agency (CISA) at the US Department of Homeland Security (DHS) had detailed what would constitute essential services.
The guidance also carves exceptions for visa applicants who are “technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the US”.
Such individuals need to prove to the consular officers that they meet at least two of the five indicators set down. These are: The employer has a continued need for their work even during the pandemic, they make a significant contribution to a critical infrastructure need, they are paid at least 15% more than the prevailing wage, they have an unusual expertise in the industry, or that their employer would suffer financial hardship if their visa was denied.
Cyrus Mehta, a New York-based immigration attorney, told TOI, “The beneficiary of an approved H-1B or L-1 petition must now meet a new super standard under the national interest exception, which are not part of the Immigration and Nationality Act, and be subject to the whim and caprice of the consular official, who would have the final say in approving or denying the request. There will also be no right to appeal if the national interest exception is denied.”
In this context, Nasscom states, “We remain cautiously optimistic, as caveats in the guidance about seniority, unique and significant contributions and/or other factors that go along with the exceptions still allow a lot of leeway in interpretation. The impact can only be gauged in course of time.”
Many view the relaxations as a fallout of the ongoing litigation. Charles H Kuck, managing partner at the law firm of Kuck Baxter, told TOI, “This is an extraordinary change in policy from the original Proclamations’ exceptions and is clearly meant to stop ongoing litigation against the Proclamations’ legality (which the government is going to lose). The provisions are broad enough, if well argued, to essentially incorporate any job in America.”
Mehta added, “The ban is unlawful and the subject of several meritorious lawsuits. The Trump administration carved out these exceptions to stave off the lawsuits, but they must continue with equal vigour and the administration should not be allowed to get away with the ban.”