Department of State Provides New Exceptions to Visa Suspension Proclamations, including Exception for a national interest exception

Yesterday, August 12th, the Department of State (DOS) announced new “National Interest” exceptions to Presidential Proclamations 10014 and 10052. As previously reported, Proclamation 10014 temporarily suspended issuance of immigrant visas for permanent residency, while Proclamation 10052 suspended issuance of new H-1B, L-1, H-2B and certain J-1 visas, subject to several exceptions. Both suspensions are in effect through the end of this year, and may be extended beyond that by the President.

Since Proclamation 10052 was published on June 22, 2020, the DOS has provided periodic updates clarifying the exceptions to this Proclamation, as well as Proclamation 10014. The update published yesterday provides several important new exceptions to Proclamation 10052 impacting H-1B and L-1 visa applicants. Applicants who are subject to the 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.

New Guidance for H-1B Visa Applicants

A. Resumption of Ongoing Employment

H-1B visa applicants who are seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification may now be eligible to apply for a new H-1B visa. Due to the COVID-19 pandemic and resulting travel bans and consulate closures, thousands of H-1B workers who have already been working in the United States have been stuck outside the country since earlier this year. The language of Proclamation 10052 does not specifically address this common scenario, which has threatened to leave these workers stranded through the end of this year, and possibly longer.

This new exception should allow many of these workers to apply for a new H-1B visa and return to the United States and resume working for their H-1B sponsoring employer. However, the guidance on the "ongoing employment" exception is not entirely clear, and may be read by consular officers to only apply where the H-1B applicant has been approved for an extension of stay petition, with no changes, with the same employer. Many of the H-1B workers stranded outside the United States are still within the first stint in H-1B status with their employer, and would not yet have an approved extension petition. Hopefully, the Department will clarify this guidance within the coming days.

B. Travel by Technical Specialists, Senior Level Managers and Other Essential Workers

The new guidance also provides a separate 5-prong test for the national interest waiver eligibility that applies to H-1B applicants. Under this test, “technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States” may be eligible for a waiver if they meet at least two of the following five prongs:

1. The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.

Under this prong, the applicant must either have a Labor Condition Application (LCAs) approved by the Department of Labor (DOL) during or after July 2020, or, if the LCA is approved before July 2020, it can be shown that the U.S. employer has a continuing need of the H-1B worker. In either case, if the applicant is able to perform their job remotely from outside the United States, this criterion will not be met.

2. 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.

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. The applicant will be required to show that either:

a. The applicant serves in a senior level position at the critical infrastructure employer, or their job duties are both unique and vital to the management and success of the business; or,

b. The applicant’s duties and specialized qualifications will provide significant and unique contributions to the critical infrastructure employer.

3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.

This determination is made based on prevailing wage indicated in the LCA that was filed with the H-1B petition. It is unclear whether the employer will be able to meet this requirement by offering a salary that is higher than that indicated on the LCA, or if the employer is locked into the wage rate already listed on the LCA.

4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.

The guidance provides as an example an H-1B visa applicant with a doctorate or professional degree, or many years of relevant work experience. It appears that persons with advanced technical degrees would likely qualify under this criterion.

5. Denial of the visa pursuant to Proclamation 10052 will cause financial hardship to the U.S. employer.

The guidance provides the following examples as illustrative of what may constitute a financial hardship for an employer: 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.

New Guidance for L-1 Visa Applicants

A. Resumption of Ongoing Employment

L-1 visa applicants who are seeking to resume ongoing employment in the United States “in the same position with the same employer and visa classification” may now be eligible to apply for a new L-1 visa. This exception will allow for L-1 visa renewals by individuals who have already been issued an L-1 visa for the same employment in the past.

B. Travel by Other Workers

The new guidance provides separate tests that apply to L-1A and L-1B applicants. L-1A Managers and Executives must meet at least two of the following three prongs:

a. The applicant will be a senior-level executive or manager;

b. 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; or

c. The applicant will fill a critical business need for a company meeting a critical infrastructure need.

L-1B Specialized Knowledge personnel must meet all of the following three prongs:

a. The applicant’s proposed job duties and specialized knowledge within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.

b. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; and

c. 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.

For L-1 personnel who have been granted “New Office” approvals: for L-1A there is an additional requirement that the new office will employ, directly or indirectly, five or more U.S. workers.

Note on Ongoing Litigation

Since Proclamation 10052 was issued in June, several lawsuits have been filed in federal district courts challenging the grounds and rationale of the Trump Administration in temporarily banning the entry of certain nonimmigrant workers into the United States. Plaintiffs in these cases include business/industry organizations and special interest groups, including the U.S. Chamber of Commerce, which was later joined by over 50 tech companies, such as Facebook, Microsoft, and Amazon; and the American Immigration Lawyers Association (AILA).

In addition, a group of H-1B holders and their derivative family members have filed a lawsuit to compel the Department of State to issue decisions on pending H-1B visa applications. The lawsuits by the business/industry organizations and AILA seek declaratory injunctive relief on enforcement on the basis that the Proclamation does not protect U.S. workers as intended, but will instead cause further harm to the U.S. economy by stifling recovery and growth domestically and forcing US companies to move operations abroad to hire qualified workers. Although the recent announcement by the Department of State has broadened the exemptions to Proclamation 10052 and may make it easier for some applicants affected by the regional COVID-19 travel bans, it will do little to stave off any future lawsuits. Ardent critics of the Proclamation argue that the recent exemptions related to wage and education in effect nullify statutory provisions under immigration law beyond the scope of executive authority and amend regulations in violation of the Administrative Procedure Act (APA).

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For the entire list of exceptions to the visa suspension proclamations, please see the Department of State website.

Please note that these exceptions do not apply to the COVID-19 related travel bans, which are currently in place for persons who in the last 14 days have visited the Peoples’ Republic of China, the Schengen Area of Europe, the United Kingdom, Ireland, or Brazil. A person who qualifies for one of the exceptions under the Department’s new guidance may nonetheless be prevented from reentering the U.S. if they are traveling from one of these countries.