DOS PROVIDES ADDITIONAL DETAILS ON NATIONAL INTEREST EXCEPTION REQUIREMENTS FOR THOSE SUBJECT TO THE JUNE 22ND PROCLAMATION

By Roujin Mozaffarimehr

As we reported back in June, on June 22, 2020, President Donald Trump signed a Presidential Proclamation suspending the entry of H-1B and H-2B visas and accompanying dependents, certain J visas, and L visas and accompanying dependents, and extending the April 2020 suspension on certain immigrants.  banning visa issuance through December 31, 2020.

The Proclamation listed 3 elements that needed to be met to be subject to the suspension, which included:

(i)  is outside the United States on the effective date of this proclamation;

(ii)   does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

A discussion on exemptions and those who are not impacted can be found in our June post.

The proclamation was subject to a bit of interpretation. Last month, we reported the first series of clarifications to the proclamation. Earlier this week, The State Department issued several additional clarifications for the proclamation. We discuss this week’s updated below.

Clarifications of Exceptions– DOS Website Updates

The State Department published, “Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak” on July 17^th, which provided clarifications on exceptions to the proclamation for those in the national interest, as well as dependents of L-1 and H-1B holders. Notable new exceptions were added this week, including:

New H-1B exceptions:

• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if 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.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

1. 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.  Labor Condition Applications (LCAs) 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; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs 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.  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 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.  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.
   3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
   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.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
   5. Denial of the visa pursuant to P.P. 10052 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.

New L-1A exceptions:

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.  An example of this would be supporting U.S. military base construction or IT infrastructure.
• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship.
• Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include 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.  An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:

1. 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.

New L-1B exceptions

• 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. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction or IT infrastructure.
• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.
• 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. 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.

Please note that the above is not an exhaustive list.

As a reminder, the State Department states that,  “Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa appointment at the closest Embassy or Consulate and a decision will be made at the time of interview. Travelers are encouraged to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.”

If you have questions regarding the impact of the Proclamation, these clarifications, or are considering travel and do not have a valid visa in the H,J, or L categories, please do not hesitate to reach out to ImmiCore Law so that we may assist you.