Ask Sophie™: Latest immigration and H-1B updates

Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I work in people ops in tech. Restrictions and conditions placed on visas and green cards seem to be continuously changing.

What’s the latest for tech, such as H-1Bs and other nonimmigrant visas?

—Strong in San Francisco

Dear Strong:

And what a summer it’s been! Fortunately there’s a bunch of great news in immigration this week. I’d love to dive in to new State Department exceptions that apply for new H-1B visas at embassies and consulates around the world. This will help a lot of tech companies whose H-1B employees got stuck outside the U.S. on trips for “visa stamping” (consular interviews) earlier this year.

Before we get into that though, I wanted to share some additional and recent top immigration highlights: First, U.S. Citizenship and Immigration Services (USCIS) is restarting interviews (our team just handled several naturalization interviews remotely for clients across the country) and it looks like green cards will be scheduled again soon. Second, USCIS announced that it is canceling plans to furlough more than 13,000 employees next week, thereby averting a massive slowdown of visa and green card processing. Third, for those Dreamers out there and the tech companies who love them, USCIS is starting to accept some DACA (Deferred Action for Childhood Arrivals) renewals and work permit applications.

As mentioned before, the great news that I want to focus on today is that there are new exceptions for folks to get H-1B visas at embassies and consulates around the world. The State Department recently expanded the exceptions to the bans on H-1B, H-2B, J-1 and L-1 visas for individuals seeking to enter the United States. President Trump put those bans into place with presidential Proclamation 10052 in June. (Check out my podcast on the proclamation for more details.) The State Department’s guidance came on the heels of lawsuits challenging Proclamation 10052 and w, which halted the issuance of green cards abroad.

Under the State Department’s new guidance, more individuals living outside the U.S. will be eligible for H-1B, H-2B, J-1 and L-1 visas — and the corresponding dependent visas for spouses and children — under national interest exceptions. Now we have more detailed information about the eligibility requirements for these exceptions to the ban, who can qualify and how.

To recap how we got here: Proclamation 10052 suspended the issuance of the following visas at U.S. embassies and consulates abroad:

• H-1B visas for specialty occupations.
• H-2B visas for temporary, nonagricultural workers.
• H-4 visas for dependent spouses and children of H-1B and H-2B visa holders.
• J-1 visas for individuals participating in an intern, trainee, teacher, camp counselor, au pair or summer work travel program.
• J-2 visas for dependent spouses and children of J-1 visa holders.
• L-1 visas for intracompany transferees, which includes L-1A and L-1B.
• L-2 visas for dependent spouses and children of L-1 visa holders.

Under the proclamation, individuals seeking to enter the U.S. to work in a position deemed “essential to the United States food supply chain” or whose position was deemed to be in the “national interest” of the U.S. are exempt. The State Department has now added more national interest exceptions to all of these visa categories.

Who can now qualify for a new visa?

H-1B Visas

H-1B visa candidates living outside of the U.S. can now qualify for an exception if any of the following applies to the individual:

• A public health or health care professional or researcher whose work is related to COVID-19 or public health.
• Supported by a request from a U.S. government agency for U.S. foreign policy objectives, treaties or contracts.
• Resuming employment in the U.S. in the same position, with the same employer and in the same visa classification.
• Is a technical specialist or senior-level manager whose position is necessary to assist with the U.S. economic recovery. At least two of the following must apply:
  • The sponsoring employer received Labor Condition Application approval in July 2020 or later. However, if the candidate is currently working or can work from outside the U.S., then this exception cannot apply.
  • The candidate will provide “significant and unique contributions” to a company doing business in the critical infrastructure sector and must have either a senior position “vital” to the company or specialized qualifications.
  • The wage offered “meaningfully exceeds” the prevailing wage rate by at least 15%. (Under current immigration law, sponsoring employers must pay an H-1B position at least the prevailing wage.)
  • The H-1B candidate’s education, training or experience show “unusual expertise.”
  • Denial of the H-1B will cause financial hardship to the employer.
    

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H-2B Visas

H-2B candidates living outside the U.S. can qualify for an exception if either:

• A U.S. government agency needs the H-2B candidate to meet critical foreign policy, treaty or contractual obligations.
• Employing the H-2B candidate would contribute to the recovery of the U.S. economy. If this is the case, at least two of the following must apply:
  • The candidate was previously employed and trained by the employer and has worked under two or more H-2B petitions.
  • The employer received temporary labor certification approval in July 2020 or later.
  • Denial of the H-2B will cause financial hardship to the employer.

J-1 Visas

The State Department specified additional exceptions for J-1 visa candidates applying for au pair and teacher exchange programs. However, of most interest to employers are the exceptions for J-1 candidates who are living outside the U.S. and seeking to enter an intern or trainee program. These individuals can qualify for an exception if any of the following applies:

• A J-1 visa agreement was already in place prior to June 23 effective date of the presidential proclamation between the government of the J-1 visa holder’s home country and any U.S. government entity.
• The candidate is participating in an exchange visitor program sponsored by a U.S. government agency and the program supports economic recovery in the U.S.
• The intern or trainee candidate is participating in a program that involves a critical and time-sensitive foreign policy matter.
• Please note that J-1 researcher visas were not included in the original ban.

L Visas

Candidates for the L-1A visa for intracompany transferee managers and executives and the L-1B visa for intracompany transferee specialized knowledge workers can qualify for an exception if any of the following apply:

• They are a public health or health care professional or researcher working on COVID-19-related services or research or whose work relates to the pandemic.
• A U.S. government agency requests them for critical foreign policy, treaty or contractual obligations.
• They are seeking to resume employment in the U.S. in the same position, with the same employer and in the same L-1A or L-1B classification.
• An L-1A candidate is eligible for entry into the U.S. if at least two of the following are met and the candidate is not setting up a new U.S. office:
  • Is a senior executive or manager filing a critical need of the employer.
  • Has spent many years with the company and the alternative of hiring a new employee and providing extensive training would cause financial hardship for the employer.
  • Fills a critical need for a company meeting a critical infrastructure need.
• An L-1A candidate who is seeking to set up a new office in the U.S. The new office must employ at least five U.S. workers and meet at least two of the three criteria listed above.
• An L-1B candidate must:
  • Be a technical expert or specialist meeting a critical infrastructure need.
  • Have duties and specialized knowledge that will provide “significant and unique contributions” to the company.
  • Have spent many years with the company overseas and the alternative of hiring a new employee and providing extensive training would cause financial hardship for the employer.

Additional details

In its announcement, the State Department also clarified that H-4, J-2 and L-2 dependent visa holders are exempt from the proclamation if the principal H, J or L visa applicant qualifies for a national interest exception.

Remember, Proclamation 10052 or 10014 affects only those individuals applying for a visa or green card at a U.S. embassy or consulate abroad. Individuals currently in the U.S. can apply to either change their status from one temporary visa to another temporary visa or adjust their status from a temporary visa to a green card.

Best of luck to you in your efforts to recruit and retain international talent. As always, I recommend working with an experienced immigration attorney when trying to find the best visa or green card options for current or prospective employees.

Be well!

Sophie