US election 2020: Uncertainties remain despite visa relaxations, reopening of H-1B lottery

This has been quite a week in the US immigration space. There was some good news for Indians, who were stuck in India due to the June 22 proclamation that banned entry to the US till December.

So what are these updates? Are they all really good news, especially with elections around the corner?

Starting with the latest first. The US Consulates in India that were closed due to COVID-19 will start operations from August 17 across major cities. Priority is to process student visas and academic exchange visitors received before August 12 before beginning routine appointments.

Applicants for processing of visas such as H-1B and H4 too can request for appointment as per the guideline issued by the US embassy. But “… only if they have reason to believe that they qualify for one of the exceptions listed by the US Department of State (DoS) on August 12.”

Before getting to the exceptions, the move itself is welcome as the embassies have been closed for around five months since March mid due to COVID-19. While the consulates will get around to processing H-1B or other non-immigrant visas such as H4, J-1, L-1 and H-2B sooner or later, it is not clear when that would be.

“But we are hopeful and this is at least a beginning,” said Vinod*, a techie, who is waiting to get his H-1B stamped and does fall under the exception provided by DoS.

Now looking at exceptions, H-1B and L-1 visa holders have to tick a few boxes before they would be allowed to enter.

One of them is, if they return to the same employer they were working with before the pandemic. Employees like Vinod, who have been working with the same employer for more than decade, more than qualify.

But, this obviously leaves many out. For the rest come more conditions. Tech workers or senior managers travelling to the US need to prove that they indeed contribute to the recovery of the US economy in the post COVID-19 world. They need to be working in the areas such healthcare, critical infrastructure support or food and agriculture.

Even then, their eligibility would be decided by the consular officer and hence leaves a lot of room for subjectivity that might not benefit these workers at all.

There is also an additional requirement that these workers should receive 15 percent more than the prevailing wage rate. Stuart Anderson, Executive Director, National Foundation for American Policy, an immigration policy think tank, said in his Forbes article that these exceptions are unlikely to stop lawsuits being filed. For, the article states, the conditions such as wage rates are not mentioned in the US regulation and could be challenged.

What is more interesting is that these exceptions come right after the US tech giants backed the lawsuit filed against the June 22 proclamation on July 15. The lawsuit to some extent seemed to have played a role in tweaking the non-immigrants entry into the US, said Vinod, who was keenly following the lawsuit over the last month.

The third and final update was around reopening the H-1B lottery. The United States Citizenship and Immigration Services’ (USCIS) move to re-open the lottery was a surprise. For, H-1B, the coveted highly skilled immigrant visa, gets its 85,000 quota filled in a matter of few days after opening.

For FY21, where the electronic registration was implemented for the first time, it should have been finished by June 2020. But it was not the case and the USCIS had to select applicants by lottery for the second time. These applicants have time till November 16 to file their petitions. This lag has probably come at the back of COVID-19 and uncertainty around immigration during the time of elections.

This is rare and probably the first time since 2010 during the global financial crisis when applications were not filled even 211 days into the year.

These three updates do bring hope to those stuck overseas. But also caution as there is no guarantee that your visa would be approved. The USCIS in a statement to Moneycontrol has stated that the applicants should submit relevant evidence to establish their motive to travel to the US.

So there is every possibility of getting rejected, or filing additional evidence for their H-1B petition to pass through. With elections set on November 3, there are still uncertainties abound for the skilled workers and their employers.

*Names changed to protect identity.