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National Interest Exceptions To Recent Presidential Proclamations

August 13, 2020

On August 12, 2020, the Department of State issued updated guidance regarding national interest exceptions noted in President Trump’s proclamations suspending entry of immigrant and nonimmigrant visas. As previously noted, those individuals in H-1B, H-2B, H-4, J-1, J-2, L-1, and L-2 status who were in the U.S. on the effective date of the Proclamation or who possess a valid visa stamp are not impacted by the Proclamation.  With the Department of State’s updated guidance, there are now delineated national interest exceptions available to individuals in H-1B, H-2B, J-1, and L-1 status and their dependents who will accompany or follow to join them in the U.S.

The following list summarizes the types of travel that may be considered in the national interest by the Department of State and, therefore, excluded from the Proclamation’s suspension:

H-1B Applicants

  • Public health or healthcare professionals, or researchers working 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 U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.

  • Applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.

  • Technical specialists, senior-level managers, and others whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S. At least two of the following factors must be met:

    • Denial of the visa would cause financial hardship to the U.S. employer.

    • Wage rate paid to the applicant exceeds the prevailing wage rate by at least 15 percent.

    • Applicant’s education, training, and/or experience demonstrate unusual expertise in the specialty occupation.

    • Petitioning employer meets a critical infrastructure need AND the proposed job duties/position within the petitioning company indicate the applicant will provide significant and unique contributions.

      • Critical infrastructure sectors: 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.

      • Positions considered:

        • Senior-level position OR job duties that reflect performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR

        • Job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the company.

    • Petitioning employer has a continued need for the services to be performed by the H-1B nonimmigrant in the U.S.

      • This may be demonstrated by an LCA approved during or after July 2020.

      • NOTE: This indicator is not present if the applicant is currently performing or is able to perform the essential functions of the position for the employer remotely from outside the U.S.

H-2B Applicants

  • 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.

  • Travel necessary to facilitate the immediate and continued economic recovery of the U.S. where at least two of the following are shown:

    • The applicant was previously employed and trained by the petitioning employer.

      • The applicant must have previously worked for the employer under two or more H-2B petitions.

    • The applicant is traveling based on a temporary labor certification that reflects continued need for the employer.

    • Denial of the visa will cause financial hardship to the employer.

J-1 Applicants

  • Travel by an au pair with special skills required for a child with particular needs (medical, special education, or sign language) to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status.

  • Travel by an au pair that prevents a U.S. citizen, LPR, or nonimmigrant in lawful status from becoming a public health charge or ward of the state.

  • Childcare services provided for a child whose parents are involved with provision of medical care to those with COVID-19 or medical research to help combat COVID-19.

  • An exchange program pursuant to an agreement between a foreign government and a U.S. government entity designed to promote U.S. national interests that were in effect prior to June 24, 2020.

  • Interns and trainees on U.S. government agency-sponsored programs (program numbers ending with “G-3” on Form DS-2019).

  • Specialized teachers in accredited educational institutions (program numbers beginning with “G-5” on Form DS-2019).

  • Exchange visitors participating in programs that fulfill critical and time-sensitive foreign policy objectives.

L-1A Applicants

  • Public health or healthcare professionals, or researchers working 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 U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.

  • Applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.

  • Travel by a senior-level executive or manager filling a critical business need of an employer meeting a critical infrastructure need.

    • Critical infrastructure sectors: 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 must not be seeking to establish a new office in the U.S. (unless they will employ five or more U.S. workers) AND two of the following factors must be met:

      • Senior-level executive or manager;

      • Spent multiple years with the company overseas; OR

      • Will fill a critical business need for a company meeting a critical infrastructure need.

L-1B Applicants

  • Public health or healthcare professionals, or researchers working to alleviate 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 U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.

  • Applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.

  • Travel as a technical expert or specialist meeting a critical infrastructure need.  All three of the following should be present:

    • The applicant’s job duties and specialized knowledge indicate they will provide significant and unique contributions to the company;

    • Their specialized knowledge is specifically related to a critical infrastructure need; AND

    • They spent multiple years with the company overseas.

Dependents

  • National interest exceptions are also available to H-4, L-2, or J-2 applicants who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a national interest exception.