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 the United States;
- a foreign national who is the spouse or child of a United States citizen;
- a foreign national who was in the U.S. in H-1B, H-2B, L-1, or J-1 status on June 24, 2020;
- a foreign national in possession of a valid H-1B, H-2B, L-1, or J-1 visa issued on June 24, 2020;
- a foreign national seeking entry into the 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 Advance Parole document, transportation letter, boarding foil, etc., on June 24, 2020;
- any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
- any foreign national whose entry would 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 to healthcare or research designed to alleviate the effects of the COVID-19 pandemic (H-1B, L-1A, L-1B ONLY);
- The work or activity is related to a request 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) ;
- The work or activity is necessary to facilitate 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 resuming ongoing 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);
- The work or activity is technical or managerial 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);
- The work or activity involves caring for 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);
- 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);
- The work or activity involves providing 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);
- The work or activity involves 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 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);
- The work or activity involves interns or 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);
- The foreign national is a senior level 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);
- The work or activity involves a technical 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.