State Dept. Carves Out Broad Exemptions To Work Visa Ban

By Suzanne Monyak
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Law360 (August 12, 2020, 8:38 PM EDT) -- Foreign citizens working in the U.S. who found themselves stuck abroad when the Trump administration closed the country's borders and suspended work visas may return to continue their same jobs, the U.S. Department of State said Wednesday.

In updated guidance, the State Department said that individuals seeking to return to the U.S. on H-1B specialty occupation visas or L visas for internal company transfers "to resume ongoing employment" in "the same position with the same employer and visa classification" may be exempted from President Donald Trump's June visa ban.

"Forcing employers to replace employees in this situation may cause financial hardship," the guidance said.

The guidance also carves out exceptions for H-1B 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 United States."

Individuals hoping to travel to the U.S. under this category must show that they meet two of the following five criteria: their employer has a "continued need" for the individual's work, even during the pandemic; the individual makes a significant contribution to a "critical infrastructure need"; the individual is paid at least 15% more than the prevailing wage; the individual has "unusual expertise" in the industry; or that the employer would suffer financial hardship if the visa is denied.

The carveouts offer broad exemptions to Trump's June order, which suspended the issuance of new H-1B and L visas, as well as J-1 cultural exchange visas and H-2B guest-worker visas through 2020.

Previously, H-1B and L visa applicants could only travel at the request of the U.S. government or for essential COVID-19 research under the ban.

The guidance also offers more clarity to the visa suspension, whose vague terms and broad "national interest" exemption had even seasoned immigration lawyers unsure how to advise their clients.

Loren Locke, an immigration attorney at FordHarrison LLP and former consular officer, told Law360 that the new exemptions will likely still keep entry-level hires blocked from entering the U.S. on new visas, but will allow more essential and experienced employees to take jobs in the U.S.

"It feels like a real unraveling of the proclamation," she said. "I think this looks like the government bending to pressure from the private sector."

The wider exemptions come as the Trump administration faces a slew of legal challenges to the visa restrictions.

While the administration has claimed that the visa suspension will free up jobs for Americans who lost work during the economic downturn caused by the COVID-19 outbreak, technology companies and industry associations, including the U.S. Chamber of Commerce, have claimed the proclamation will hinder U.S. economic recovery by deterring foreign talent and pushing jobs overseas.

Cyrus Mehta, a New York City-based immigration lawyer, thought the exemptions may represent an attempt to stave off litigation and show that the visa bans are not as restrictive. However, he argued that the State Department is still "inventing the law here" by adding new requirements and paperwork burdens for visa applicants.

"I still feel that it's problematic, and the lawsuits should continue and should add additional grounds in the complaint to argue that these exceptions create even more burdens," he said.

--Editing by Haylee Pearl.

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