By Poorvi Chothani
President Trump’s proclamation of June 22, 2020 banning the entry on several work visa categories (the June Ban) has created a lot of panic amongst Indian workers who are in the U.S. or were scheduled to be in the U.S. on a valid work visa soon. Most of the individuals affected by the June Ban are technology workers and intra-company transferees all of whom are generally very highly skilled and/or at very senior positions at offshore affiliates of American companies.
In this article we will examine how the June Ban, which ends on December 31, 2020, affects the H-1B, L-1 and F-1 (student) visa categories as well as the long-term impact on EB-2 and EB-3 green cards.
At the outset it is important to note that unless a U.S. government agency makes a national-interest (or other) exception, the June Ban does not have a significant impact in the near future because most U.S. consular posts are closed and visa interview appointments are unavailable unless one can show that there is an emergency. In India especially, consulates are expected to open only when there is clear guidance from the governments (both central and state) on the lockdown that was initiated in the middle of March and has gone through several extensions.
While about 70% of the H-1B and L-1 visas are granted to Indian nationals, this June Ban is unlikely to have a major, immediate impact on Indian IT/ITeS companies as only a relatively small number of H-1B employees will be affected. Most of the H-1B workers with approved petitions under the FY 2021 H-1B CAP, in any event, could not have started work before October 1, 2020 and that too only if their petitions had been approved.
The June Ban restricts the entry of individuals on an H-1B or H-4 visa unless they had a valid visa stamp when the ban came into effect, i.e., June 24, 2020. Individuals who are already in the U.S. in H-1B or H-4 status are not affected by the June Ban as long as they remain within the U.S. However, if they have valid visas in these categories they can even travel out of the U.S. and return. In-country extensions (for both H-1B and H-4), change of employers, change of status, amendments to the H-1B employment are all permitted.
The H-1B visa classification permits a foreign national to work in a “specialty occupation” position in the U.S. for a temporary maximum period of six years. To qualify for an H-1B visa, the beneficiary must possess at the least, a U.S. bachelor’s degree or its equivalent.
An H-1B status may be issued in increments of up to three years by the USCIS for a maximum stay of 6 years. H-1B status may be extended beyond the six-year limit in certain circumstances, i.e. if the individual is the beneficiary of an EB-3 or EB-4 employment based green card that is at an advanced stage of processing.
Dependents of H-1B visa holders are generally eligible for H-4 visas but they cannot work in the U.S. However, if the H-1B principal visa holder has an approved I-140 (green card), H-4 dependents could qualify for work authorization. The H-4 status can be extended in the U.S. based on an extended H-1B status by filing an in-country application with the USCIS.
H-1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these are reserved for individuals with advanced U.S. degrees) This numerical restriction is referred to as the H-1B cap and the fiscal year (FY) runs from October 1 through September 30 of the following year. The USCIS has received almost three times the CAP for each year for the past several years. The beneficiary’s application has to be selected in a lottery that the USCIS runs because of this mismatch in demand and supply.
H-1B CAP FY 2021
The selection process for the H-1Bs for the FY 2021 CAP concluded in the month of March 2020 and petitions were filed between April 1 and June 30, 2020. The earliest an employee can begin working on a CAP subject H-1B visa is October 1, 2020 for this FY. Due to the June Ban they cannot travel until December 31, 2020 even if they could get an H-1B visa stamp. However, at present U.S. consulates across the globe are either closed or offering only very limited services. In India they are closed for all regular visa services and there is no indication when they will open. As such, even if the petitions are approved before October 1, there is a high likelihood that they will not be able to get a visa before that any way. Unless the ban is extended beyond the end of December, the CAP subject H-1B workers could begin working in the U.S. in January or in the ensuing weeks. This will be a loss to the companies but not in our opinion a devastating loss.
The June Ban restricts the entry of individuals on an L-1 or L-2 visa unless they had a valid visa stamp as on June 24, 2020. Individuals who are already in the U.S. in L-1 or L-2 status are not affected by the June Ban as long as they remain within the U.S. However, if they have valid visas in these categories they can even travel out of the U.S. and return. In-country extensions (for both L-1 and L-2), change of employers, change of status, amendments to the L-1 employment are all permitted.
An L-1 visa is a non-immigrant intra-company transfer visa. To qualify for an L-1 visa, the employee must have worked for a subsidiary, parent, affiliate or branch office of the U.S. Company outside the U.S. for at least one year out of the last three years. An L-1A is granted to senior executives and managers while the L-1B is granted to specialized knowledge employees. There is no cap, quota or limitation on the number of L-1 visas that can be issued.
L-1A visa holders are allowed a maximum period of stay of seven years with an initial approval of three years and in case of new office L-1s get an initial approval of one year. As for L-1Bs, a maximum of five years of authorized period of stay is allowed in the U.S.
Dependents of L-1 visa holders may apply for L-2 visa and can extend their status within the U.S. L-2 dependents are allowed to take up employment in the U.S. once they have work authorization.
F-1 Visas and Optional Practical Training
An F-1 visa is issued to international students who wish to attend an academic program at an accredited U.S. institute. The June Ban does not restrict the travel of individuals on F-1 visas. Consulates are also not prevented by the ban from issuing such visas. Individuals who are in the U.S. on F-1 visas can continue to remain in the country or travel out of the U.S. and return during the validity of the visa.
Eligible F-1 visa holders can receive up to 12 months of optional practical training (OPT) by applying for work authorization post-graduation. OPT must be directly related to the major area of study.
If a student holds a degree in certain science, technology, engineering and math (STEM) fields, he or she may apply for a 24-month extension of post-completion OPT employment authorization subject to certain additional criteria.
Employers can file H-1B petitions under the H-1B CAP for individuals who are on OPT. If the OPT candidate is selected and there is a timely filing, she can continue working in the U.S. until October 1 of that year and change to H-1B status if the petition is approved. If the petition is not approved before October 1 then the OPT candidate can continue to remain in the U.S. but must stop working until the petition is approved. This is known as the CAP gap protection.
It is best for individuals who are on OPT and whose H-1B has been selected in the lottery to remain in the U.S. until the end of December when the ban ends as long as their F-1 OPT status remains valid. For instance, if the H-1B change of status petition is approved, it is best for the beneficiary to remain in the U.S. because if he were to leave the country he would need to re-enter on an H-1B visa and would be subject to the June Ban. Also, if the beneficiary is outside the U.S. when the H-1B petition is approved, he will again be subject to the ban.
EB-2 and EB-3 Green Cards
The June Ban does not have any impact on the EB-2 and EB-3 visas, which are employment-based immigrant visas (green cards). However, a provision in the June Ban directs the Departments of Homeland Security and Labor to “……consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers…..” This is alarming and could be the first signs of some drastic changes. But what is more alarming is the pernicious part about disadvantaging U.S. workers – as it implies that employers might have to test the labor markets again to see if there is any negative impact.
Both the EB-2 and EB-3 visas are granted after a lengthy and stringent labor market test requiring a Labor Certification under PERM or the Department of Labor’s Program Electronic Review Management system. This involves, among other things, advertising the job and proving that no U.S. worker was eligible and/or available to take up the proffered position. If employers are required to test the labor market again for individuals who have been waiting their turn in the EB-2 or EB-3 queues for several years and some for decades, it will be devastating for the employees and their families.
The total number of employment-based visas that can be issued each FY are 144,951, and the per-country limit is 7% of this worldwide cap of which, each of the EB-2 and EB-3 category is generally limited to 28.6%. Hence, both these categories are subject to retrogression for Indian nationals as there are more visa applicants than there are available visas.
An employee who is the beneficiary of a labor certification or an I-140 petition that has been pending for more than 365 days, the H-1B status can be extended in one-year increments until a final decision is made. Further, an employee who is the beneficiary of an approved I-140 petition but cannot file an adjustment of status application due to retrogression is also eligible for extensions of H-1B status in three-year periods. H-4 dependents may also extend their status in such cases.
Individuals who are in the U.S. on an H-1B or H-4 waiting their turn for a green card, should refrain from leaving the U.S. if they need a new visa stamp to return.
Termination or End of Permitted Term in the U.S.
An H-1B worker is allowed a 10-day grace period to leave the country at the end of the 6-year period unless he qualifies for additional extensions. If terminated, an H-1B worker has 60 days grace period (or until the expiry of his I-94 whichever is shorter), during which period he may look for another job or prepare to leave the U.S. If employees are unable to leave the U.S. at the end of their authorized or grace period, especially due to Covid-19 related issues, or if their employment has been terminated, they should consider the timely filing of a change of status application with the USCIS to another appropriate visa to ensure that they do not accrue unlawful presence.
The June Ban does have a devastating impact on individuals in a variety of scenarios, but it disproportionately impacts Indians the most as they are the largest users of the H-1B visa.
It is extremely sad to see what the ban is doing to families – separating young children from parents and forcing single parents to cope with difficult times, child care, work and ensuing stressful situations, while the spouse is outside the U.S. Individuals who left the U.S. with a valid visa, which expired while they were caught in the COVID-19 induced travel restrictions, cannot return to the U.S. while the ban is in place. Family members who are within the U.S. while the principle beneficiary is stuck outside the U.S. are at risk of losing their lawful status in the U.S. Dependents cannot remain in the country for extended periods of time if the principal nonimmigrant worker is outside the country. In addition, they fall out of status if the principal worker is terminated during the ban even when stranded outside the U.S.
There are many who are preparing to sue the government and could succeed on many counts. For instance, President Trump himself, a few days before announcing the ban claimed that the economy was on an upswing and that unemployment was reducing. The Migration Council estimates that the June Ban at best would be able to keep only around 29,000 H-1B and 6,000 L1 visa holders outside the U.S. How this will help more than 17 million unemployed U.S. workers get their jobs back is inconceivable. While the June proclamation states that between February and April of 2020 more than 20 million U.S. workers lost their jobs in key industries where employers are currently requesting H-1B and L workers to fill positions, the U.S. Bureau of Labor Statistics (BLS) report dated June 19, 2020, shows that not more than 1.8 million jobs have been lost in the Professional and Business Services industry which sponsors more than 75% of H-1B and L-1 visas. U.S. companies have spent 100s of thousands of dollars to file H-1B CAP cases for FY 2021, but employees will not be able to travel to take up these jobs before January 2021. This will result in huge losses for the companies and we don’t think they will take this lying down.
Litigation seems a certainty, but the outcome is not. An overhaul to the U.S. immigration system also seems a certainty but the form and shape it will take is unclear.
(The writer is Managing Partner, LawQuest)