FAQ: US Relaxes H-1B Visa Restrictions, But Will I Be Allowed?

The US has relaxed H-1 B visa restrictions for certain categories of professionals.

(Photo Courtesy: The News Minute)

The United States has relaxed a slew of restrictions on the entry of non-immigrants holding H-1B visas for healthcare professionals working on COVID-19, individuals critical to US foreign policy, those resuming employment at the same position with the same employer and for specialists whose travel is necessary to the economic recovery of the country.

I am a researching on COVID-19 in the US, will I be allowed?

Yes, H1-B visa restrictions have been diluted for public health, healthcare professionals and researchers who are working to alleviate the effects of COVID-19. This includes health professionals and researchers who may not directly work on COVID-19, but are helping out with other areas of concern that have been directly impacted by the pandemic.

What if I have contractual obligations?

If a US government agency or an entity has requested for the travel of individuals who are critical to US foreign policy or to satisfy treaty or contractual obligations, the said person would be allowed in. This includes individuals performing research, offering IT support who have been identified by the department of Defence or any other US government agency.

Can I return to the same position with a different employer?

No, the new guidelines clearly say that only those resuming employment in the US in the same position with the same employer will be allowed in.

Who else will be allowed in?

Technical specialists, senior-level managers and other workers whose travel is necessary to the immediate and continued economic recovery of the US will be allowed in. However, a consular officer will determine if an individual is crucial to the US economy.

My LCA Was approved before July 2020. Will I be allowed?

If the Labour Condition Application (LCA) of a non-immigrant H-1B visa worker had been approved by the Department of Labour during or after July 2020, then it would be assumed that the petitioning employer still has the need for H-1B visa worker and therefore, the said non-immigrant would meet the criteria of continued need.

However, if the LCA was approved before July 2020, it is the consular officer who will examine the visa application to determine if at all the employer is in continued need of the services of the non-immigrant, for whom the visa application has been filed.

My LCA was approved during July 2020, but I am working from my home country. Am I eligible?

No, irrespective of when the LCA was approved, if an applicant is currently performing or is able to perform essential functions for the prospective employer remotely from their home country outside the US, then they will not be eligible.

Who will decide if I play a significant role in the company?

H-1B visa applications of individuals whose employment in proposed job duties or positions within the petitioning company will be able to able to make significant and unique contributions to an employer’s critical infrastructure needs will be allowed. However, this will be determined by the consular officer on two grounds:

• Senior-level placement or job duties within the petitioning organisation that are unique and vital to the management or overall success of the business enterprise.
• Proposed job duties of the applicant and specialised qualifications indicate that they will provide significant and unique contributions to the petitioning company.

What are the other eligibility criteria?

If an H-1B applicant receives or is poised to receive a wage that is 15 percent more than the prevailing wage rate in the US, they will be allowed in as it would suggest that the employee fills an important business need where an American worker is not available.

If 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, they will be allowed in.