National Interest Exceptions to Nonimmigrant  Visa Ban: U.S. Department of State Update August 12, 2020

The U.S. Department of State (DOS) released additional  guidance expanding the scope of national interest exceptions to the June 24, 2020 Presidential Proclamation (PP 10052) banning the admission of certain J, H and L visa holders until at least December 31, 2020.  The guidance will potentially permit many more foreign nationals to be admitted to the U.S. in H and L status while the ban remains in effect. Significantly, the updated guidance permits H and L visa applicants to enter the U.S. to resume ongoing employment in the same position with the same employer and visa classification.  The guidance also provides additional criteria for consulates to consider in granting national interest exceptions for certain H, L or J visa applicants and dependent family members.  Although applicants may be eligible for an exception, consular delays and uncertainty due to COVID-19 regional travel bans continue to impact the availability of visa appointments and visa issuance.

Who Qualifies?

Foreign nationals seeking admission in the classifications below may be eligible for a national interest exception to PP 10052.

H-1B Visa Applicants

H-1B visa applicants may be eligible for an exception to the travel ban for:

• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research).
• Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Note that the supporting petition must explicitly specify that the applicant is continuing in “previously approved employment without change with the same employer.”
• Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  At least two of the following five indicators must be present:
  1. The petitioning employer continues to need the services performed by the H-1B nonimmigrant in the United States.  If the Labor Condition Applications (LCA) supporting the petition was certified by the Department of Labor (DOL) during or after July 2020, DOS is  more likely to consider that the employer has a continuing need for the worker despite the pandemic.  If the LCA was certified by the DOL before July 2020, the consular officer must be able to  determine from the visa application the continuing need for the worker within the U.S.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
  2. The foreign national’s proposed job duties with the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:
     • Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
       The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
     • The wage rate paid to the H-1B worker meaningfully exceeds the DOL determined prevailing wage rate by at least 15 percent.
  3. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the foreign national will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may qualify under this criteria.
  4. Denial of the visa will cause financial hardship to the U.S. employer. For example, the employer will be unable to  to meet financial or contractual obligations, continue its business or return to its pre-COVID-19 level of operations.

L-1A Visa Applicants

L-1A visa applications may be eligible for an exception to the travel ban for:

• Travel by applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.
• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
• Travel based on a request from a US government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations (e.g., supporting US military base construction or IT infrastructure).
• Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need (chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems) and at least two of the following three indicators are present:
  1. Will be a senior-level executive or manager;
  2. Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
  3. Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B Visa Applicants

L-1B visa applicants may be eligible for an exception to the travel ban for:

• Travel by applicants seeking to resume ongoing employment in the US in the same position with the same employer and visa classification.
• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
• Travel based on a request from a US government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations (e.g., supporting US military base construction or IT infrastructure).
• Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
  1. The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
  2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; and
  3. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

J-1 Visa Applicants

J-1 visa applicants may be eligible for a national interest exception to the travel ban for:

• Travel to provide care for a minor US citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language).
• Travel by an au pair that prevents a US citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
• Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help combat COVID-19.
• An exchange program conducted pursuant to a valid agreement or arrangement between a foreign government and any federal, state, or local government entity if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Proclamation.
• Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019).
• Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019 who meet certain criteria.
• Critical foreign policy objectives.

H-2B Visa Applicants

National interest exceptions may also be available for certain H-2B visa applicants for:

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
• Travel necessary to facilitate the immediate and continued economic recovery of the United States (e.g. those working in forestry and conservation, nonfarm animal caretakers, etc).  Consular officers may determine that an H-2B applicant falls into this category when at least two of the following three indicators are present:

1. The applicant was previously employed and trained by the petitioning U.S. employer.  The applicant must have previously worked for the petitioning U.S. employer under two or more H-2B (named or unnamed) petitions.  U.S. employers dedicate substantial time and resources to training seasonal/temporary staff, and denying visas to the most experienced returning workers may cause financial hardship to the U.S. business.
2. The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker.  TLCs approved by DOL 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, and therefore this indicator is only present for cases with a TLC approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-2B worker.  For TLCs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.
3. Denial of the visa will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

H-4, L-2 and J-2  Dependent Visa Applicants

Spouses and dependent children of H, L or J visa applicants who are already excepted from, or not subject to PP 10052, are eligible to apply for a derivative visa.  If a principal visa applicant is not subject to the proclamation, the derivative family member is also not subject.  If the principal visa applicant is granted a national interest exception, the eligible family member may apply for a visa to accompany the principal applicant.

Impact on Foreign Workers

Despite the recently announced exemptions, consulates retain significant discretion in scheduling  visa appointments, determining who qualifies for an exemption, and the issuance of visas.  Many consulates remain closed or may be available for limited emergency requests only.  Additionally, visa issuance by a consulate or exemption from  P.P. 10052 does not mean that an individual is eligible for admission to the U. S.  The coronavirus-related regional travel bans generally restricting entry to the U.S. from the European Schengen Area, the United Kingdom and Ireland, China, Iran, and Brazil, as well as the land border restrictions at the U.S., Canadian and Mexican borders, remain in place, though it has been reported unofficially that if an individual is granted a national interest exception to the visa ban, he or she may likewise be exempted from the regional travel bans. Individuals granted a national interest exemption from the visa ban may need to verify their admissibility to the U.S.  with U.S. Customs and Border Protection prior to traveling to the U.S.

While the expanded scope of national interest exceptions to the visa ban is welcome news to many employers, the government restrictions and exemptions imposed by fiat and without the benefit of notice and comment,  are part of a deeply concerning trend by which the Administration advances its anti-immigration agenda outside of the regulatory process, creating chaos and a lack of predictability for U.S. employers.  There is ongoing litigation challenging the visa bans, and the exceptions to the ban – clearly mirroring what the Administration has been unable to accomplish through law and regulation – may serve to strengthen challenges to the bans.

In the interim, foreign nationals and their employers should keep in mind that  travel restrictions are subject to change without advance notice.  Visa applicants should consult with immigration counsel prior to departing the U.S. or applying for a visa. For additional information, please contact your designated Gibney representative.