State Department expands National Interest Exceptions for nonimmigrants subject to Presidential Proclamation 10052

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As employers continue to try to find ways for essential nonimmigrants and their dependents to be issued H-1B, H-2B, L-1, and J-1 (intern, trainee, teacher, camp counselor, au pair, or summer work travel program) visas subject to Presidential Proclamation 10052 (Proclamation 10052), on August 12, the State Department updated its list of examples (August 12 NIE) for qualification of the national interest exceptions (NIE) from Proclamation 10052. Please refer to my earlier article outlining the provisions of Proclamation 10052. The nonimmigrant issuance restrictions in Proclamation 10052 are separate from the geographic Presidential Proclamations requiring presence for 14 days in a country not subject to the geographic proclamations. This article will primarily address the L-1 and H-1B categories addressed in the August 12 NIE posting.

What nonimmigrant visa categories are subject to the suspension imposed by Proclamation 10052?

Applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

When did Proclamation 10052 as to certain nonimmigrant visa categories become effective and when will its restrictions end?

Proclamation 10052 became effective at 12:01 am (ET) on June 24, 2020 and remains in effect through December 31, 2020, unless extended or terminated by the President.

Does Proclamation 10052 apply to visa issuances and admission to the U.S. at a port of entry?

Yes. Customs and Border Protection (CBP) officers have indicated that if the State Department’s consular officials issue a visa in one of the listed categories affected by Proclamation 10052, they will admit the visa holder assuming he or she is otherwise eligible for admission to the U.S. Note, however, that for those already holding a qualifying visa for admission in a Proclamation 10052 category, CBP may require prior notification for admission of the individual using an NIE. This process is not uniform.

How does a visa applicant apply for Proclamation 10052 NIE?

Since the Department of State (DOS) suspended most nonimmigrant and immigrant visa services back in March of 2020, all visa applicants are still subject to post by post availability of consular services, including appointments.

Until DOS resumes full consular services, applicants needing an NIE may not be processed for a visa appointment interview, unless they are eligible for an NIE. The August 12 NIE posting states that those who believe that they qualify for an NIE may request a visa appointment and a decision “will be made at the time of interview as to whether the traveler has established that they are eligible for a visa pursuant to an exception.” Of course, the availability of appointments is still subject to staffing and COVID-19 related concerns. Currently, the process to request an NIE first involves a request for an emergency appointment and each post uses its own protocol.

If the principal is not subject to Proclamation 10052, may his or her dependents be admitted to the U.S.?

If an H-1B, H-2B, L-1, or J-1 non-immigrant is not subject to Proclamation 10052, then neither that individual nor the individual’s spouse or children will be prevented from obtaining a visa due to the Proclamation.

If the principal is subject to Proclamation 10052, may his or her dependents be admitted to the U.S. if the principal is approved for an NIE?

NIEs are available for 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 P.P. 10052.

What L-1A visa applicants may qualify for an NIE? (excerpts from August 12 NIE)

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 U.S. 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 U.S.:

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.

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

What L-1B visa applicants may qualify for an NIE? (excerpts from August 12 NIE)

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 U.S. 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.

What H-1B applicants may qualify for an NIE? (excerpts from August 12 NIE)

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). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).

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. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.

Travel by applicants seeking to resume ongoing employment in the U.S. 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 U.S. 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 U.S. 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 U.S., 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

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.

REPRODUCED BY PERMISSION OF DICKINSON WRIGHT