Department of State Issues Further Guidance on National Interest Exception to Presidential Proclamation

On June 22, 2020, President Donald Trump signed Presidential Proclamation 10052 which suspended entry into the U.S. of certain non-immigrant applicants including H-1B, L-1, and J-1 visa applicants. The Proclamation provided a list of exceptions to the entry suspension for these visa categories, including a “national interest” exception.

On August 12, 2020, the U.S. Department of State (DOS) provided further guidance regarding the national interest exception to the Proclamation for which H-1B, L-1, and J-1 visa applicants may qualify. We hereby provide the following highlights below.

Please Note: for H and L extension applicants who are returning to the same position with the same employer in the U.S., they seem qualify for the “national interest” exception without more.

H-1B Applicants may be excepted if:

• They require 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);
• They require travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or satisfy treaty or contractual obligations;
• They require travel in order to seek to resume ongoing employment in the U.S. in the same position with the same employer and visa classification; OR
• They require travel as technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S. In order to meet this criteria, they must meet at least two (2) of the following five (5) criteria:

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.
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 (e.g. 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:
   1. 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
   2. 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.
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.
5. Denial of the visa pursuant to the Proclamation will cause financial hardship to the U.S. employer, such as: 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 may be excepted if:

• They require 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);
• They require travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or satisfy treaty or contractual obligations;
• They require travel in order to seek to resume ongoing employment in the U.S. in the same position with the same employer and visa classification; OR
• They require travel as a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need (e.g. 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 (2) of the following three (3) 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.

Please Note: L-1A applicants seeking to establish a new office in the U.S. likely do NOT fall into this category, unless two (2) of the three (3) above criteria are met AND the new office will employ, directly or indirectly, five (5) or more U.S. workers.

L-1B applicants may be excepted if:

• They require 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);
• They require travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or satisfy treaty or contractual obligations;
• They require travel in order to seek to resume ongoing employment in the U.S. in the same position with the same employer and visa classification; OR
• They require travel as a technical expert or specialist meeting a critical infrastructure need (e.g. 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 consular officer may determine that an L-1B applicant falls into this category if ALL three (3) of the following indicators are present:

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.

J-1 Applicants may be excepted if:

• They are on an exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
• Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
• Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.

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

Those 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 to Proclamation.

Further Analysis

There is a very good chance that an injunction enjoining the implementation of the nonimmigrant (temporary) visa ban will be issued by one or more of the federal court judges in the pending litigations challenging the legal authority for the issuance of the ban.

This new memo appears to be an attempt to address many of the specific issues raised in the declarations and the amicus briefs regarding the prejudice and irreparable harm that this ban is inflicting on companies and foreign nationals.

There are no separate H or L requirements at the consular level but this memo has created such requirements.

By placing the requirements in a State Department guidance memo, it puts them in the context of national interest exceptions that are discretionary determinations and arguably non-reviewable in the courts.

We do believe that the State Department guidance is helpful in that it creates some possibilities for some foreign nationals and companies. The problem is that the memo creates an extremely document-intensive process with new requirements completely independent of the (document-intensive) process necessary to obtain USCIS approval of the H or L petition. Companies will have to document conformity with all new standards and requirements with no interpretations and with no certainty if, when and how the consular officers will adjudicate the national interest exceptions (NIEs).

In terms of procedure, before there can be an adjudication of the NIE, the foreign national will have to be approved for an emergency appointment at the consulate, which requires proof that the travel is of an emergent nature.

Second, the consular officers will have to adjudicate the national interest exception application subject to no standards or guidance. We don’t know how long it will take consular officers to complete these adjudications given all of the backlogs and in light of the fact that they have never had to adjudicate these types of applications previously.

Most H-1Bs who are not resuming ongoing employment in the U.S. must meet a very difficult standard: their travel must be “necessary” to facilitate the “immediate and continued economic recovery of the U.S.”  This could be very broad but maybe interpreted very narrowly. We think each consular officer may interpret this memo very differently.

If the applicant meets those requirements, he/she then must show that he/she is making a “significant” and “unique” contribution to an employer meeting a critical infrastructure need. Uniqueness has never been a requirement of the immigration law.  It is also important to note that if the applicant is performing or could perform the functions of the position remotely from outside the U.S., he/she apparently doesn’t qualify.

For L-1s, it is not enough to be a manager or executive, which is the statutory and regulatory requirement. Under the State Department guidance, it is necessary to be a “senior level” executive or manager, which is not defined. Also, the statutory and regulatory requirement for an L-1 is that the transferee has been employed by the employer for at least 1 year. The State Department guidance requires multiple years of employment. “Multiple years” is not defined.

We hope that the nonimmigrant ban and the immigrant ban will be enjoined by at least one federal court. This memo is moving in the right direction but it is very vague and fraught with undefined criteria.

The full list of exception criteria can be found here.