Effective today, the U.S. has imposed travel restrictions on nonimmigrants traveling from India. The travel suspension does not apply to U.S. Citizens, Lawful Permanent Residents, or their spouses. Parents of U.S. Citizen children or Lawful Permanent Resident children are similarly exempted from the suspension, as long as the children are unmarried and under the age of 21. There are some other exemptions, including those for humanitarian effort workers, foreign students enrolling in Fall 2021 programs, educators, and journalists. This article, however, will specifically address considerations for those who currently hold or seek to hold H-1B status.

Since the travel suspension will continue until formally lifted by the U.S., this guidance should be carefully reviewed and taken into consideration for all H-1B employees or those seeking to change status to H-1B. At this time, there is no estimated end date for the travel suspension, since it will be based on the Covid-19 numbers and infection rate in India.

Implications and Considerations for Current H-1B Holders in the U.S.

If you currently hold H-1B status and you are in the U.S., you should not travel out. Regardless of the current travel suspensions in place for various countries, the most important thing to remember is that Covid-19 related restrictions are unpredictable. Even if a country is not currently restricted, it could become restricted at any time while you are traveling and then you will not be able to return back to the U.S. ILBSG advises all clients with valid status to remain in the U.S. and to minimize travel unless it is an emergency. Consulate closures, airline cancellations, and other travel-related concerns remain unpredictable during the pandemic. The best thing to do is to avoid travel.

Because India is currently under a travel suspension, it is very important that all affected H-1B holders continue to maintain status in the U.S., particularly when filing an amendment, transfer, or extension petitions. Should USCIS discover any lapse or status violation, the H-1B approval will be issued without I-94 or your current approval could be revoked. In that event, you will be required to attend stamping in your home country. If your home country is India or any other restricted country, this could mean you will have to depart the U.S. and may not be able to return for several months.

Maintenance of status during this time is crucial. H-1B holders should be diligent and make sure they are complying with their certified LCA at all times. If a project changes, even if you are working remotely, you should make sure your H-1B employer files an H-1B amendment before you start. All material changes must be documented with USCIS, including end-client changes. Because the risk of having to travel out for stamping could result in being stuck outside for months, ILBSG advises a very conservative approach for all H-1B holders. If you have any status-related questions or are unsure whether a change requires an amendment, always check with an immigration attorney ahead of time.

 

Implications and Considerations for H-1B Holders Currently Outside the U.S.

If you currently hold H-1B status but were in India at the time of the travel suspension, you are subject to the suspension and will not be granted re-entry unless you fall under a national interest exception or other exception, as outlined by the Department of State. Notably, if you hold a nonimmigrant visa but have a U.S. citizen child under the age of 21, you will be exempted from the suspension.

Otherwise, a complete list of national interest exceptions can be viewed here. The U.S. Consulate in India has also posted some Frequently Asked Questions. When asked about H-1B visa holders, the Consulate explained an exception may be available for those providing vital support for critical infrastructure sectors.

If you believe you qualify for a national interest exception, hold a valid nonimmigrant visa, and have definite plans to travel, you should contact the applicable embassy or consulate that issued the visa to request a national interest exception prior to travel. The U.S. Consulate in India has stated that you must send an email to the applicable consulate with your first and last name, date of birth, place of birth, country of citizenship, passport number, visa number and category, and confirmed travel dates. You must outline the purpose of your travel and identify a national interest category, with a clear justification for why you should be granted a national interest exception.

The applicable emails are provided below:

If granted, a national interest exception is valid for 30 days for a single entry.

If you do not currently hold a valid visa, but believe you qualify for a national interest exception, you will need to make an emergency appointment. The U.S. Consulates in India are only accepting emergency appointments at this time, which can be requested through the online system at https://www.ustraveldocs.com/in/expedited-appointment.html. Any request for an emergency appointment must identify a national interest exception and provide supporting documentation.

Implications and Considerations for Those Applying to Change Status to H-1B for FY 2022 Cap

If you are currently in the U.S. on valid nonimmigrant status (F-1, H-4, etc.) and seeking to change status to H-1B by filing a petition under the FY 2022 Cap, it is critical you continue to maintain status until your H-1B is approved in order to ensure the H-1B approval will have an I-94 attached. You should not travel out after the H-1B petition is filed, as traveling outside the U.S. (to India or anywhere else) will abandon the change of status portion of your request.

If the change of status is denied and you must travel outside for stamping, you may not be able to return to the U.S. for some time. This will depend on consulate closures, the availability of visa appointments, as well as the travel suspension (should it remain in place in October). As such, it is important you continue to diligently maintain status. It will be particularly important this year to provide USCIS with strong documentation to support your maintenance of status at the initial filing and/or Request for Evidence stages. If you have any status-related questions or concerns, make sure to discuss with an ILBSG attorney to ensure complete compliance with all applicable immigration laws.

ILBSG will continue to keep its clients up to date with any new developments in this area. As always, individual situations require a case-by-case analysis, so please reach out to an ILBSG attorney today if you have questions.

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