State Department Issues New Guidance on “National Interest Exceptions” to Trump’s June 22 Proclamation

August 13, 2020 Amber Davis

October 2 Update: On Oct. 1, 2020, a federal judge has partially blocked the Trump administration from enforcing this suspension of certain visas for individuals who are currently outside of the U.S. 

However, this ruling only applies to the plaintiffs and the companies they represent. The plaintiffs in this case are the U.S. Chamber of Commerce, the National Retail Federation, TechNet and the National Association of Manufacturers. 

The judge’s order does not apply to employers not represented by one of the above plaintiffs. 

If you are an Envoy customer and affiliated with the plaintiffs, please post to the communication to alert your legal team.


What Happened?

On August 12, 2020, the Department of State released new guidance on what they will consider to be a “National Interest Exception” to the visa issuance and travel ban that went into effect on June 22, 2020. The exceptions list is extensive and opens up many options for nonimmigrant workers who had been working in the U.S. (and are currently abroad) and need to resume their employment or who are new employees working in uniquely important roles.

Each embassy or consulate has its own procedures for scheduling appointments on a limited basis. They will allow appointments for H-1B, H-2B, L-1, and J-1 visas if the initial inquiry shows that the applicant qualifies for a national interest exception to the earlier ban on issuance of these visas.

Who Does This Impact?

Anyone who has been prohibited from re-entering the U.S. in H-1B, H-2B or L-1 status can now apply for a new visa if they are “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.”

Any dependent family member (H-4, L-2 or J-2) who has been unable to enter the U.S. due to the proclamation can apply for a new visa if the principal H-1B, H-2B or L-1 employee is either in the U.S. or is getting a new visa under one of the national interest exceptions.

Other Exceptions

Please note that the information below is in summary format only. There are numerous sub-categories and additional exceptions. This is a guideline to start conversations and not an exhaustive list.

H-1B

Exceptions for H-1B holders include the following:

  • Employees seeking to re-enter the U.S. to resume ongoing employment
  • Healthcare professionals and researchers in the medical field
  • Personnel whose travel is supported by a U.S. government agency or entity
  • Technical specialists, senior managers, and others who can show at least 2 of 5 of the following factors:
    • A Labor Condition Application (LCA) certified in or after July 2020
    • A wage exceeding the required prevailing wage by at least 15%
    • A job description that provides for unique contributions to meet a critical infrastructure need in particular infrastructure sectors
    • Credentials that show particular expertise, such as a doctorate degree and/or years of specialized experience
    • Financial hardship to a company should the employee not be allowed to work

H-2B

Exceptions for H-2B holders include the following:

  • Employees seeking to re-enter the U.S. to resume ongoing employment
  • Employees who can demonstrate their work is necessary for economic recovery in the U.S. Employees in this category will most likely need to show at least 2 of 3 conditions:
    • The U.S. employer already provided extensive training
    • A Temporary Labor Certification (TLC) certified in or after July 2020
    • Financial hardship to the company should the employee not be allowed to work

J-1

Exceptions for J-1 holders include the following:

  • Au pairs who can demonstrate a significant need of the petitioning family in line with the national interest
  • Exchange visitors entering under an agreement between a foreign government and any federal, state, or local government entity in the U.S.
  • Interns and Trainees in U.S. government agency-sponsored programs Some specialized teachers
  • Employees fulfilling critical foreign policy objectives

L-1A

Exceptions for L-1A holders include the following:

  • Employees seeking to re-enter the U.S. to resume ongoing employment
  • Healthcare professionals and researchers in the medical field
  • Personnel whose travel is supported by a U.S. government agency or entity
  • Some Managers or Executives that can show at least 2 of the following 3 conditions:
    • Senior-level role
    • Multiple years of employment with the company group outside the U.S.
    • A job description that shows they will fill a critical business need for a company meeting a critical infrastructure need

L-1B

Exceptions for L-1B holders include the following:

  • Employees seeking to re-enter the U.S. to resume ongoing employment
  • Healthcare professionals and researchers in the medical field
  • Personnel whose travel is supported by a U.S. government agency or entity
  • Some technical personnel meeting a critical infrastructure need, if the job description shows that the employee will provide significant and unique contributions, the employee has specialized knowledge specifically related to the critical infrastructure need, and the employee has multiple years of employment with the company group outside the U.S.

What Do I Need To Do Next?

If a foreign national was previously advised that they were most likely not going to be able to enter the U.S. until January 2021, they should talk to their attorney at Global Immigration Associates (GIA) or other legal counsel to see if their situation has changed. They may be able to apply for a visa now.

If a foreign national was previously advised that they needed to cancel an urgent or important trip due to the risk of not being able to re-enter the U.S., they should talk to their GIA attorney or other legal counsel to see if their situation has changed.

How Are Envoy Global and GIA Responding?

Please note that even with these exceptions, travel may still be risky as the situation with COVID-19 is still rapidly evolving. GIA has advised that all foreign national employees keep in close contact with their attorney at all times before making any plans to travel or take any trips.

GIA has also indicated that there are ongoing litigation against the visa restrictions, and additional guidance may be released at any time. If a foreign national does not meet any of the exceptions now, they may in the future.

Follow the Envoy blog to stay informed on the latest developments related to this article.


Envoy is pleased to provide you this information, which was prepared in collaboration with Amber Davis, who is a Senior Associate at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.

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