Virginia, US

Aug 12 2020

State Department Broadens National Interest Exceptions to Nonimmigrant Entry Ban for H-1B and L-1 Employees

United States

At a glance

  • New State Department guidelines permit foreign nationals to seek an H-1B or L-1 visa to return to the United States to resume previously approved employment that has not changed.
  • Applicants for H-1B, L-1A and L-1B visas may be eligible for a national interest exception if their U.S. employer is fulfilling a critical infrastructure need in a designated industry and the visa applicant meets certain additional eligibility criteria.

The issue

The State Department has issued highly-anticipated updates to its guidance on national interest exceptions (NIEs) from President Trump’s June 22 proclamation banning the entry of H-1Bs and L-1s, among other nonimmigrants. 

Under the new guidance, foreign nationals may obtain a new H-1B or L-1 visa if they are returning to the United States to continue in previously approved employment with the same employer in the same visa category or if the employment meets other economic recovery criteria including if their employer is fulfilling a critical U.S. infrastructure need in a designated industry and the visa applicant meets stringent criteria pertaining to his or her experience, expertise, and other factors. The new exceptions are in addition to the COVID-related and public health exceptions that were already in place under the ban.

Exceptions for H-1B visa applicants

A foreign national may seek an H-1B visa to resume ongoing employment in the United States in the same position with the same employer and visa classification.

Alternatively, an applicant for an H-1B may be eligible for an NIE if two of the following criteria are met:

  • The employer has a continued need for the services or labor to be performed by the H-1B applicant, provided that the employer had a labor condition application (LCA) approved by the U.S. Department of Labor during or after July 2020. If the LCA was obtained before July 2020, the visa application must demonstrate the employer’s continued need for the foreign national.  This criterion is not met if the visa applicant is currently performing or able to perform the essential functions of the H-1B position from outside the United States.
  • The employer is meeting a critical infrastructure need and the visa applicant’s job duties or position within the petitioning company will provide “significant and unique” contributions to the employer. Critical infrastructure sectors include financial services, information technology, communications, healthcare and public health, transportation, chemical, defense, water systems and nuclear reactors. Additionally, to fulfill this criterion, the applicant must: (a) hold a senior-level placement within the petitioning organization or have job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; or (b) demonstrate that the applicant’s proposed job duties and specialized qualifications indicate that the applicant will provide significant and unique contributions to the petitioning company.
  • The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.
  • The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed – e.g., the applicant holds a doctorate or professional degree related to the position or possesses many years of relevant work experience.
  • Denial of the visa under the nonimmigrant entry ban will cause financial hardship to the U.S. employer, e.g., inability to meet financial or contractual obligations, inability to continue the business or an impediment to the employer’s ability to return to its pre-COVID level of operations.

Exceptions for L-1A visa applicants

An L-1A visa applicant may be eligible for an NIE if he or she is seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.

Alternatively, an applicant for an L-1A visa (other than a new-office L-1A) may be eligible for an NIE if he or she is a senior-level executive or manager and meets two of the following criteria:

  • The applicant will be a senior-level executive or manager.
  • 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.
  • The applicant will fill a critical business need for the employer meeting a critical infrastructure need in a designated industry (described above).

 

Exceptions for L-1B visa applicants

A foreign national may seek an L-1B visa to resume ongoing employment in the United States in the same position with the same employer and visa classification.

Alternatively, an applicant for an L-1B visa may be eligible for an NIE to travel to the United States as a technical expert or specialist meeting a critical infrastructure need. To qualify for this exception, the applicant must meet all of the following criteria: 

  • The applicant’s proposed job duties and specialized knowledge indicate that the applicant will provide “significant and unique” contributions to the petitioning company;
  • The applicant’s specialized knowledge is specifically related to a critical infrastructure need; and
  • 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 could cause the employer financial hardship.

 

Procedures for seeking an exception

A visa applicant who believes he or she is eligible for a national interest exception to the nonimmigrant travel ban must make a visa appointment at the relevant consulate using the consulate’s procedures for requesting an emergency appointment. The applicant must detail the reasons the applicant believes he or she qualifies for an exception. If the applicant is approved for an emergency appointment, he or she must appear for a personal interview. A final determination of the applicant’s eligibility for the visa and NIE are made at the time of the interview. If the principal visa applicant is granted an exception, the applicant’s spouse and dependent children benefit from the exception.

What this means for employers and foreign nationals

The expanded national interest exceptions are welcome news for employers and foreign nationals subject to the nonimmigrant ban. However, stringent eligibility criteria, as well as ongoing COVID-19 travel bans and reduced operations at U.S. consulates -- could delay or block a visa applicant’s travel to the United States, even if the applicant qualifies for a national interest exception under the new nonimmigrant ban criteria.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.