We are aware of the Presidential Proclamation (P.P. 10052) that was signed by Trump has suspended the entry and issuance of non-immigrant visas for applicants of H-1B, H-2B, L-1, and certain J-1 visas. This proclamation was signed with the motive of protecting the U.S. labor market during the economic recovery following the corona pandemic.
As outlined in our previous post, this Proclamation 10052 would only apply to those who were:
- Outside the United States on the effective date of the Proclamation (June 24, 2020);
- Did not hold a valid H-1, H-2, L-1 or J-1 non-immigrant visa and pursuant to which the foreign national is seeking entry, that is valid on the effective date of this proclamation; AND
- Did not hold an official travel documents other than a visa (e.g., transportation letter, boarding foil, or advance parole document).
This has a devastating impact on non-immigrant visa holders as well as certain immigrants. Many non-immigrants who had exited the country to renew their H-1B or L-1 visas are stuck up outside the country.
Department of State Clarifies Criteria for National Interest Exception
On August 12, 2020, the US Department of State (DOS) has now issued new guidance clarifying how applicants subject to the visa suspension may qualify for a National Interest Exception (NIE). This is specifically to those applying for an H-1B or L-1 visa who will resume their work in the US in the same position, with the same employer, and visa classification.
Exceptions under P.P. 10052 for certain travel in the national interest by non-immigrants may include the following:
- The applicant is a public health or health care professional or researcher, traveling for the purpose of alleviating the effects of COVID-19 or to conduct ongoing medical research in an area with a substantial public health benefit.
- The applicant’s travel is 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.
- The applicant is seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
- The applicant is a technical specialist, senior level manager, or other worker whose travel is necessary to facilitate the immediate and continued economic recovery of the US. Consular Officers may determine that an H-1B applicant falls into this category when at least two of the following criteria are met:
- The US Employer has a continuing need for the position demonstrated by when the LCA was approved during or after July 2020, OR, where an LCA is approved before July 2020 the consular officer must be able to determine the continued need of the applicant. HOWEVER, if it is evident the applicant can perform the essential functions of the role remotely, this criterion cannot be met.
- The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need. However, employment in a critical infrastructure sector alone is not sufficient; the applicant also needs to hold one of the following positions:
a) 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
b) 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 applicant meaningfully exceeds the prevailing wage rate by at least 15%.
- The H-1B applicant’s education, training, and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.
- Denial of the visa will cause financial hardship to the US employer, such as an inability to meet financial or contractual obligations, or an impediment preventing a return to the employer’s pre-COVID 19 level of operations.
Similar exceptions are applicable to H-2B, L-1, or J-1 applicants as well. Applicants who are subject to any of these Proclamations, but who believe they may qualify for a national interest exception or other exception, should follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception. However, travel bans impacting travel from China, Iran, the Schengen Area, UK and Ireland, and Brazil within 14 days of entry to the US are still in effect.
For the moment there is no exception for those seeking a new H-1B visa. However, many hope that this will bring about a change in immigration reforms that have shattered the world of many, post the pandemic.