Department of State Clarifies and Expands Exceptions to Trump Work Visa Entry Ban

In an August 12, 2020 news alert, the Department of State (DOS) has issued extensive set of clarifications and exemptions to the June 22, 2020 Trump H-1B, H-2B, L-1 and certain J-1 work visa ban (see our article). The DOS clarification provides much needed and welcome guidance of how to make the arguments for national interest exceptions.

Exceptions to the Visa Ban Under “National Interest”

As a reminder, the ban does not apply to applicants who were in the U.S. on the effective date of the proclamation (June 24, 2020) or who had a valid visa and plans to enter the US on that visa. The ban provides for certain exceptions including for individuals whose travel would be in the national interest.

The following are the exceptions announced by the Department of State. Anyone who is subject to the ban but falls under one of these exceptions should be able to contact the U.S. consulate and request an emergency appointment and present arguments and documentation to demonstrate that one of these exceptions apply.

H-1B Applicants

• For 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 (e.g. cancer or communicable disease research).

• Travel 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. Essentially, federal contractors may be able to make this exception.
• 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. 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:
   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.
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.   

L-1A Applicants

• 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 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. 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.

Note that L-1A “new office” applicants are likely not going to be able to meet these exceptions unless two of the three criteria are met AND the new office will employ (directly or indirectly) five or more U.S. workers.

L-1B, H-2B and J-1 Exceptions.

Please refer to the DOS August 12, 2020 alert for more detail on these categories.

H-4, L-2 and J-2 Dependent Applicants

If the principal visa holder is granted national interest exception then a dependent will also be subject to the same exception. Note that the ban does not apply to H-4, L-2 or J-2 dependents if the primary visa holder is not subject to the ban (for example, the H-1B worker was in the U.S. or had a valid visa as of June 24, 2020).

Aging Out Immigrant Visa Applicants

Finally, applicants who are subject to aging out of their current immigrant visa classification before the end of the immigrant visa ban or two weeks after can also claim an exception.

Conclusion

The August 12, 2020 DOS guidance provide a number of exceptions and significantly narrows the scope of the Trump work visa ban.

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