Throughout the end of the week, President Trump expanded the work visa restrictions he initially implemented via executive order on June 22, 2020. The executive order had been planned to lapse on 1st January 2021. However, Trump has now extended the restrictions through March 31, 2021. Nevertheless, President-Elect Joe Biden will have the opportunity to repeal the visa restrictions as early as January 20th, which is when he will be inaugurated.
Overview of Work Visa Restrictions
The executive order applies to foreign nationals who were not in the United States as of June 24, 2020. And who try to enter the United States in H1B, H-4, H2B, L-1, or L-2 status. Along with individuals requesting admission in J-1 status.
At first, there were a couple of exceptions to the order, for example, for the individuals who had a valid nonimmigrant visa as of the effective date. However, it otherwise appeared to be a fairly broad visa ban. Fortunately, in the weeks that followed, the U.S. Department of State (DOS) gave some extra exceptions.
Some of the key exceptions to the executive order for the H1B category include the following:
- H-4 dependent spouses and kids, where the primary H1B spouse is already exempted.
- The petitioning employer has a continued need for the services or labor to be performed by the H1B nonimmigrant in the United States. Labor Condition Applications (LCA’s) approved during or after July 2020. Are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business.
- The candidate’s proposed work obligations or position within the petitioning company. Shows the individual will give significant and unique contributions to an employer meeting a critical infrastructure need.
- The pay rate paid to the H1B candidate genuinely exceeds the prevailing wage rate by at least 15 percent.
- The H1B candidate’s education, training, as well as experience demonstrate unusual expertise in the specialty occupation. In which the candidate will be employed.
- Denial of the visa will cause financial hardship to the U.S. employer.
For L-1 workers, the DOS gave an exemption for any worker. Who is a senior-level executive, manager, technical expert, or specialist meeting a critical business need of an employer meeting a critical infrastructure need.
As noted, President-Elect Joe Biden could undo the executive order upon taking office later this month. However, from a practical standpoint, it is not clear. How much of an effect this executive order has really had on foreign national workers and their employers. The continuous pandemic has made it incredibly hard to acquire a nonimmigrant visa appointment. Therefore, even without a travel ban, numerous foreign national workers may need to continue holding up a very long time to get a visa.