State Department Issues Guidance on National Interest Exceptions to Proclamations Suspending Entry of Certain Foreign Nationals

On August 12, 2020, the U.S. Department of State issued guidance on scenarios that may qualify for a “national interest exception” under Presidential Proclamation 10052 of June 22, 2020 (“Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”) and Presidential Proclamation 10014 of April 22, 2020 (“Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”). Citing economic disruptions caused by the COVID-19 pandemic, President Donald Trump issued the proclamations and temporarily suspended the entry of certain foreign nationals into the United States. Although both proclamations referenced exceptions for individuals “whose entry would be in the national interest,” formal guidance had not been released prior to this announcement.

The State Department’s guidance provides a nonexhaustive list of scenarios that may qualify for a national interest exception. Importantly, the guidance cautions that U.S. embassies and consulates may still offer only limited services due to the COVID-19 pandemic, and so the ability to obtain a national interest exception is itself contingent upon the ability to obtain a visa appointment. If a national interest exception is granted, employers must also consider whether the applicant is also subject to one of the separate regional travel bans.

Employees may be eligible for national interest exceptions on several grounds, including the following:

• “[T]ravel 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).” (H-1B, L-1A, L-1B visas)
• “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.” (H-1B, H-2B, L-1A, L-1B)
• “Travel by [employees] seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.” (H-1B, L-1A, L-1B)

An H-1B visa applicant who can establish that his or her travel is necessary “to facilitate the immediate and continued economic recovery of the United States” may be eligible for a national interest exception. The applicant must establish that at least two of the following criteria apply:

1. The employer has an ongoing need for the employee as demonstrated by a labor condition application (LCA) approved by the U.S. Department of Labor (DOL) during or after July 2020. If the DOL approved the LCA prior to July 2020, the employer must prove that it (the employer) continues to have a need for the employee.

• • “Regardless of when the LCA was approved, if an [employee] is currently performing or is able to perform the essential functions of the job for the prospective employer remotely from outside the United States,” the criteria cannot be met.

2. The applicant holds a senior-level position, has unique and vital job duties, or has specialized qualifications that indicate that he or she “will provide significant and unique contributions to an employer meeting a critical infrastructure need …. Employment in a critical infrastructure sector alone is not sufficient[.]”

• • “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.”

3. “The wage rate paid to the H-1B [employee] meaningfully exceeds the prevailing wage rate by 15 percent.”
4. The 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 [H-1B] visa pursuant to [Presidential Proclamation] 10052 will cause financial hardship to the U.S. employer.”

An L-1A visa applicant who can establish travel to fill “a critical business need of an employer meeting a critical infrastructure need” may also be eligible for a national interest exception. The applicant must establish that at least two of the following criteria apply:

1. the employee “[w]ill be a senior-level executive or manager”;
2. the employee “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. the employee “[w]ill fill a critical business need for a company meeting a critical infrastructure need.” (See list of critical infrastructure sectors above.)

Note that an L-1A applicant seeking to establish a new office in the United States is not likely to 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.

An L-1B visa applicant may be eligible for a national interest exception if the applicant can establish that he or she is “a technical expert or specialist meeting a critical infrastructure need” and meets all three of the following criteria:

1. the employee’s “proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company”;
2. the employee’s “specialized knowledge is specifically related to a critical infrastructure need”; and
3. the employee 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.”

H-4 and L-2 applicants may be eligible for national interest exceptions if they “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 [Presidential Proclamation] 10052.

Applicants who believe they are eligible for national interest exceptions must first make visa appointments. The State Department’s guidance on national interest exceptions states that applicants “should follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.” If approved for an emergency appointment, the consulate will make a decision during the visa application interview as to whether the applicant has established eligibility for a visa pursuant to a national interest exception. No guidance has been provided on any specific documentation that may be required to qualify for any specific exception. Timelines for appointments will continue to vary by individual consular operations.

Analysis

It remains to be seen how consulates will apply the exceptions as a practical matter. Many exceptions are worded very broadly, leaving room for significant interpretation and variance at the consular level by the officers who adjudicate the requests. For example, to qualify for a new L-1 exception, an employee must have worked abroad for a company for “multiple” years. There is no guidance as to how many years would satisfy this criterion. The guidance appears to create new requirements for obtaining H-1, L-1, or J-1 visas while the relevant presidential proclamations are in place, bypassing the normal statutory or Administrative Procedure Act process for changing the criteria to qualify for an immigration benefit. Employers are likely to see inconsistent adjudication among consulates regarding who qualifies for a specific exception.

It is important to note that the above-listed exceptions apply only to presidential proclamations 10052 and 10014. Separate exceptions will need to be obtained for anyone subject to a COVID-19–related travel restriction (e.g., 14-day travel restrictions applicable to foreign nationals of the United Kingdom, the Schengen Area, China, or Brazil).

Ogletree Deakins’ Immigration Practice Group will monitor developments with respect to these and other policy changes and will post updates on the Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.