US Department Of State Issues Updated Guidance On How A Foreign National Subject To Presidential Proclamation 10052 May Apply For National Interest Exception (NIE)
Presidential Proclamation 10052 took effect on June 24, 2020 and
suspends the issuance of H-1B, H-2B, L-1, and J-1 visas to certain
foreign nationals through December 31, 2020. The proclamation also
prevents spouses and children of these foreign nationals from being
issued H-4, L-2, or J-2 visas. The proclamation applies to a
foreign nationals that are 1) outside of the U.S. on the effective
date of the proclamation (June 24, 2020); 2) do not have a
nonimmigrant visa in one of the categories listed above in which
the foreign national is seeking entry, that is valid on the
effective date (June 24, 2020) of the proclamation;
and 3) do not have an official travel document
other than a visa (such as a transportation letter, an appropriate
boarding foil, or an advance parole document) that is valid on June
24, 2020, or issued on any date thereafter that permits the foreign
national to travel to the U.S. and seek entry or admission. There
are several exceptions that may allow foreign nationals to be
issued an H-1B, H-2B, L-1 and J-1 visa between now and December 31,
2020 and/or enter the U.S. Recently, the U.S. Department of State
(DOS) issued guidance that provides more information as to when an
exception may apply. This writing will provide a list of exceptions
to Presidential Proclamation 10052, including a summary of the
recent National Interest Exception (NIE) guidance issued by the
U.S. Department of State (DOS) in August 2020.
Presidential Proclamation 10052 does not apply to the
following individuals:
- any lawful permanent resident of theUnited States;
- a foreign national who is the spouseor child of a United States citizen;
- a foreign national who was in theU.S. in H-1B, H-2B, L-1, or J-1 status on June 24, 2020;
- a foreign national in possession of avalid H-1B, H-2B, L-1, or J-1 visa issued on June 24, 2020;
- a foreign national seeking entry intothe U.S. as an F-1, TN, E, O, P, B, etc., nonimmigrant or issuance
of a visa in one of these categories (Note: The proclamation only
impacts those in the H-1B, H-2B, L-1, and J-1 categories. Other
nonimmigrant visa categories are not affected by the
proclamation.)
- a foreign national with valid AdvanceParole document, transportation letter, boarding foil, etc., on
June 24, 2020;
- any foreign national seeking to enterthe United States to provide temporary labor or services essential
to the United States food supply chain; and
- any foreign national whose entrywould be in the national interest as determined by the Secretary of
State, the Secretary of Homeland Security, or their respective
designees.
On August 12, 2020, the DOS provided additional guidance as to
how a foreign national may qualify for a National interest
Exception in order to be issued an H-1B, H-2B, L-1, or J-1 visa.
Based on the guidance, a foreign national may qualify for a
National Interest Exception, based on any of the following:
- The work or activity is related tohealthcare or research designed to alleviate the effects of the
COVID-19 pandemic (H-1B, L-1A, L-1B ONLY)</strong>;
- The work or activity is related to arequest by a U.S. government agency or entity to meet critical U.S.
foreign policy objectives or satisfy treaty or contractual
obligations (H-1B, H-2B, L-1A, L-1B ONLY)</strong> ;
- The work or activity is necessary tofacilitate the immediate and continued economic recovery in the
U.S., if two of the three criteria are met: i) the foreign national
was previously employed or trained by the petitioning U.S.
employer; ii) the foreign national is traveling to the U.S. based
on a temporary labor certification (TLC); iii) the denial of the
visa will cause significant financial hardship to the employer
(H-2B ONLY);
- The work or activity entails resumingongoing employment in the U.S. in the same position with the same
employer in the same visa classification, and forcing employers to
replace such workers would cause undue hardship (H-1B,
L-1A, L-1B ONLY)</strong>;
- The work or activity is technical ormanagerial in nature and will help facilitate the economic recovery
of the U.S., if two of the five following criteria are met: i) the
petitioner shows a continued need for the services or labor and/or
the case contains Labor Condition Application (LCA) approved on or
after July 2020; ii) the work or activity is significant and
contributes to an employer meeting critical infrastructure needs;
iii) the foreign national’s education, training or experience
demonstrates unusual expertise; iv) the wage rate paid to the H-1B
worker exceeds the prevailing wage rate by at least 15%; or v) the
denial of the visa will cause significant financial hardship to the
employer (H-1B ONLY)</strong>;
- The work or activity involves caringfor a minor U.S. citizen, Green Card holder, or nonimmigrant in
lawful status by an au pair possessing special skills required for
a child with particular needs (J-1 ONLY)</strong>;
- The work activity prevents a U.S.citizen, Green Card holder, or other nonimmigrant in lawful status
from becoming a public charge in the U.S. (J-1
ONLY)</strong>;
- The work or activity involvesproviding childcare services for a child whose parents are involved
with providing medical care to others to combat COVID-19 and/or
engaged in COVID-19 research (J-1 ONLY)</strong>;
- The work or activity involves anexchange 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
U.S. that is designed to promote U.S. national interests, if
agreement with the foreign government was in effect prior to June
24, 2020 (J-1 ONLY)</strong>;
- The work or activity involves internsor trainees on U.S. government agency sponsored programs, or
specialized teachers in accredited educational institutions with a
program number beginning with G-5 on Form DS 2019, or involves
critical foreign policy objectives (J-1
ONLY)</strong>;
- The foreign national is a seniorlevel executive or manager filing a critical business need or
critical infrastructure need of the employer, if two of the
following three criteria are present and the foreign national is
not seeking to establish a new office: i) the foreign national will
be a senior level executive or manager; ii) the foreign national
has spent multiple years with the company overseas, and has
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 financial hardship to
the employer; or iii) the foreign national will fill a critical
infrastructure need of the employer (L-1A
ONLY)</strong>;
- The work or activity involves atechnical expert or specialist meeting a critical infrastructure
need, if the following three criteria are met: i) the foreign
national’s proposed job duties and specialized knowledge
indicate the individual will provide significant and unique
contributions to the petitioning company; ii) the foreign
national’s specialized knowledge is specifically related to a
critical infrastructure need; and iii) the
foreign national 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 (L-1B ONLY).
In order to have a National Interest Exception (NIE) granted,
foreign nationals are first required to request an emergency visa
appointment at a U.S. embassy or consulate by providing preliminary
information as to the basis for the emergency visa appointment
request and/or National Interest Exception request. Once the
emergency visa appointment is granted by the embassy or consulate,
a formal request for the NIE is made by the foreign national at the
time of the visa appointment. The foreign national will need to
bring a signed statement confirming the work or activity to be
engaged in while in the U.S. is in the U.S. national interest,
related to the COVID-19 pandemic, etc. In addition, documentation
supporting the NIE request should also be brought to the visa
appointment. Consular officials have been given broad discretion to
grant NIE requests as part of the visa application process. (Note:
For Canadian citizens who are visa exempt, a National Interest
Exception request is made to a U.S Customs and Border Protection
(CBP) official at a U.S. Class A port of entry.)
The new guidance issued by the DOS provides greater clarity as
to how a foreign national may qualify for a National Interest
Exception, as well as more ways a foreign national may qualify.
There are reports of favorable discretion being exercised by
consular officials with respect to the grant of National Interest
Exceptions. Foreign nationals should make sure their National
Interest Exception request is well documented at the time of their
visa appointment, and be able to articulate how their work or
activity meets one or more of the criteria listed above.
FGI will continue to monitor the impact of Presidential
Proclamation 10052, as well as any future DOS guidance issued that
informs the public how to apply or qualify for a National Interest
Exception and provide updates as information becomes available.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.