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Is Trump Relaxing the Rules for H-1B Visas?

Written By The Shapiro Law Group on September 17, 2020

The Trump Administration relaxed the rules for qualifying H-1B visa holders and their families, allowing them to enter the U.S. as long as certain conditions are met.

Who Is Impacted by the Relaxed Regulations?

Visas are categorized as immigrant or nonimmigrant. Immigrant visas can result in permanent residency. Nonimmigrant visa holders may live and work in the United States, but they cannot apply for permanent status. The H-1B is a nonimmigrant visa category.

At the start of the COVID-19 pandemic, the Trump Administration signed a proclamation suspending entry of several nonimmigrant visas, including H1-B visa holders through the end of the year. The proclamation was introduced purportedly to protect the U.S. labor market following an increase in the unemployment rate. However, later assessments determined that the U.S. economy would suffer more because certain employers are unable to replace the vacated H1-B positions. The Trump Administration asserts that forcing employers to replace H1-B workers will cause financial issues for companies.

The H1-B visa relaxation is for workers whose presence in the United States is necessary for the national interest. For example, technical workers who are important for the recovery of the economy may travel to the U.S. to resume their positions.

H-1B visa holders can resume their employment in the United States if the following conditions are met:

  • Same position
  • Same employer
  • Same visa classification

The new rule will also allow senior employees in critical industries, such as information technology and healthcare, to travel to the United States if their positions are important to manage the business and help it succeed. The State Department issued five guidelines, and applicants must meet at least two of the five guidelines to get a visa. However, to blunt the anticipated impact on U.S. employment, workers under this category must be paid 15% more than their classification.

Additionally, healthcare workers and researchers working on COVID-19, or coming to the U.S. at the request of a U.S. agency, or due to treaty obligations, may be granted an H1-B visa. This category also includes IT workers who are working on behalf of U.S. agencies. Furthermore, the spouses and dependents of the qualifying visa holders may travel to the U.S.