Tag Archives: exceptions to H-1B travel ban

CONFIRMED: New H-1B Cap Selections & Filing Window!

CONFIRMED: New H-1B Cap Selections

We have confirmed that USCIS is selecting additional H-1B registrations for the FY2021 cap. The additional registration selections are allowed because USCIS did not receive enough H-1B cap petitions during the April 1 to June 30, 2020 filing window. Many employers reported temporary closures and reduced services during pandemic shutdowns, leading to fewer organizations moving forward with hiring.

USCIS has not reported how many additional registrations are being selected, but the agency is expected to make an official announcement soon.

Checking the Registration Status

Employers and their legal representatives can check the status of the registrations by logging into the H-1B cap registration system. Currently, a registrant’s online USCIS account will display one of four statuses for each individual registration:

  • Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected or Denied.
  • Selected: Selected to file an FY 2021 H-1B cap-subject petition.
  • Not Selected: Not selected for this fiscal year.
  • Denied: The same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year are invalid.

H-1B cap-subject beneficiaries, including those eligible for the advanced degree exemption, must have a “Selected” registration notification in order for a registrant or representative to properly file an H-1B cap-subject petition for FY 2021. The status of registrations not selected as part of any initial random selection process and not denied will remain as “Submitted.”

USCIS cautions that registrants and representatives will not be notified until the end of the fiscal year if they are not selected.

New Filing Window: August 17 to November 16

When a registration is selected, a selection notice will be generated by the H-1B cap registration system. The notice will include the filing deadline and USCIS filing location. New selection notices received by our office are displaying a filing window of August 17 to November 16, 2020.

Our legal team is monitoring the registrant accounts to see if additional registrations are selected for filing. We have notified several clients who have already had additional registrants selected.

Has your H-1B registration been selected in the past few days? Contact us at info@challalaw.com to get started with your H-1B filing!

5 Eligibility Criteria for Overcoming H-1B Ban

5 Eligibility Criteria for Overcoming H-1B Travel Ban

Earlier this year, President Trump signed a presidential proclamation suspending entry to the U.S. of certain immigrant and nonimmigrant visa applicants based on their “risk to the U.S. labor market” due to the ongoing COVID-19 outbreak.

The Department of State has clarified some exceptions to the rule, allowing travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification. The update states “forcing employers to replace employees in this situation may cause financial hardship.”

As we previously reported, the orders do not apply to:

  • Applicants in the United States on the effective date
  • Those with valid visas at the time of the effective date
  • Individuals with other official travel documents valid on the effective date
  • Spouses and children of the individuals above

The proclamation also allows travel for:

  • Public health or healthcare professionals and researchers entering to alleviate effects of COVID-19 pandemic or in areas not directly related, but has been adversely impacted by the pandemic
  • Individuals invited to meet U.S. foreign policy objectives, satisfy treaty or contractual obligations with a U.S. government agency

Additionally, the proclamations included exceptions for individuals whose entry would be in the national interest. The Department of State recently allowed “Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States” if consular officers determine the H-1B applicant meets at least two of five eligibility criteria.

Five Eligibility Criteria for H-1B Workers

#1 – Employer has a continued need for the services or labor

This indicator applies to Labor Condition Applications (LCAs) approved during or after July 2020, as DOS sees these LCAs as more likely to account for the effects of the COVID-19 pandemic on the labor market and the petitioner’s business.

For LCAs approved before July 2020, the consular officer must determine from the visa application that the U.S. employer has a continuing need of petitioned workers.

Note: 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 indicator is not met.

#2 – The individual will provide significant and unique contributions to an employer meeting critical infrastructure needs

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.

However, a critical infrastructure sector alone is not sufficient evidence. The H-1B visa applicant must have:

  1. 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
  2. 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 exceeds the prevailing wage by at least 15 percent

The higher wage suggests that the employee fills an important business need where an American worker is not available.

#4 – The applicant has unusual expertise in a specialty occupation

The DOS states that an applicant’s education, training, and/or relevant experience can demonstrate this expertise and make it more likely that he or she will perform critically important work for the petitioning employer.

#5 – The denial of the visa constitutes a financial hardship for the employer

To demonstrate that the denial would cause the employer a financial hardship, the employer must provide evidence of the company’s inability to meet financial or contractual obligations, continue its business, or a delay or other impediment to the employer’s ability to return to pre-COVID-19 level of operations.

Next Steps

It will be at the consular officer’s discretion as to whether visa applicants meet the criteria above. Visa appointments will be limited as embassies and consulates begin to reopen. Applicants and employers should consult with their attorneys to prepare a package of strong evidence before scheduling an appointment.

Contact us at info@challalaw.com to schedule a time to discuss whether your critical employees are eligible for an exception to the travel ban.

New Immigration Ban: President Declares Foreign Workers “Threat” to U.S. Economy

WHAT IS THE IMMIGRATION BAN?

President Trump issued a proclamation continuing his April 22, 2020 proclamation that prohibited the entry of immigrant visa holders and suspending and limiting the entry of any individual seeking entry pursuant to the following nonimmigrant visas:

  1. H-1B or H-2B visa, and any individual accompanying or following to join such individual.
  2. J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and
  3. L visa, and any individual accompanying or following to join such individual.

The proclamation shall apply only to any individual who:

  1. is outside the United States on the effective date of this proclamation.
  2. does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
  3. does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The suspension and limitation on entry pursuant to section 2 of this proclamation shall not apply to:

  1. any lawful permanent resident of the United States.
  2. any individual who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen.
  3. any individual seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  4. any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The continuation of Proclamation 10014 is effective immediately. The suspension of the entry of certain nonimmigrants took effect on June 24, 2020, at 12:01 am (ET) and is planned to expire on December 31, 2020 (but may be continued).

HOW DOES THIS AFFECT YOU?

If you are currently residing in the U.S. on a nonimmigrant status, this ban does not affect you.

  1. You can change status in the U.S.
  2. You can extend your status in the U.S.
  3. You can process your permanent residency application.

If you are currently outside the U.S. and you are already in possession of a valid visa, this ban does not affect you.

  1. CHALLA TIP: If you traveled outside the U.S. to visa process for a new nonimmigrant category, but are in possession of another valid nonimmigrant visa, you can return to the U.S. on your existing visa and change status to another classification in the U.S.

If you are processing a visa other than H-1B, H-2B, L-1 or J-1, this ban does not affect you.

  1. CHALLA TIP: If you are exploring investment opportunities in the U.S., the B-1 visa, which is not one of the banned nonimmigrant classifications, is a mechanism for exploring expansion into the U.S. market. You can then change status to an L-1, if eligible, in the U.S. if once arriving in the U.S. and investigating expansion options, you discover that you need to obtain a work eligible status immediately.
    1. Caution: The B-1 classification requires that at the time of entry, you intend to return to your home country. Therefore, it is impermissible to enter on the B-1 with the predetermined notion or intent to change status in the U.S. Therefore, we do not recommend utilization of the B-1 for entry with the preconceived intent to change status, but only highlighted that if after entry, the circumstances presented themselves where departing and reentering would pose a business risk, at that point there is the ability to file for a change of status application, but only after 60 days of entry.

There is also an exemption for individuals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. That may be an opportunity to those who are able to make that argument if it is aligned with the standard for national interest waiver, an employment based permanent residency program. However, since it is a discretionary determination, we will need to wait and see how it is applied.

Additional Questions?

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