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Exceptions to Presidential Proclamations (10014 & 10052) - Update for H-1B and L-1 Statuses

Posted August 12, 2020H-1B

 

The Department of State has issued additional clarification surrounding the Presidential Proclamation issued on June 22, suspending the entry to the United States of foreign nationals of certain visa categories, including H-1B, H-2B, and L-1 visa; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children covered applicants applying for H-4, L-2, or J-2 visas. 

Proclamation does not apply to individuals who:

  • Were in the United States on June 24th, or
  • Had a valid H-1B, H-2B, L-1, or J-1 visa and plans to enter the U.S. using that visa, or
  • Had another official travel document valid on June 24th.

If an H-1B, H-2B, L-1, or J-1 visa holder is not subject to the Proclamation, then neither the individual nor their dependent family members (spouse and children) would be prevented from obtaining a visa.

National Interest Exceptions to the Proclamation

H-1B applicants:

  • For travel as a public health or health care 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
  • 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.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  

Travel by technical specialists, senior level managers, and other workers whose travel is necessary to the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

  • The petitioning employer has a continued need for the services or labor to be performed by the H-1B visa holder in the U.S.
    • Typically demonstrated by a Labor Condition Application (LCA) approved by the Department of Labor (DOL) during or after July 2020.
    • For LCAs approved before July 2020, the consular officer must determine the continued need from the visa application.
    • If an applicant is currently performing, or able to perform the essential functions remotely, then this indicator is not present.
  • The job duties or position within the company demonstrate the applicant will provide significant and unique contributions to an employer meeting a critical infrastructure need. Critical infrastructure fields 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.
    • Senior level placement within the company or job duties showing performance of functions that are both unique and vital to the management and success of the overall business enterprise; or
    • Proposed job duties and specialized qualifications show that the individual will be making significant and unique contributions to the company.
  • The wage to be paid to the individual exceeds the prevailing wage rate by at least 15% (Part F, Questions 10 and 11 on the LCA).
  • Individual’s education, training, and/or experience demonstrate unusual expertise in the specialty occupation that individual will be employed.
  • Denial of the visa will cause financial hardship to the U.S. employer.
    • Employer’s inability to meet financial or contractual obligations
    • Employer’s inability to continue its business
    • Delay or impediment to employer’s ability to return to its pre-COVID-19 level of operations.

  L-1A applicants

  • 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. 
  • 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.
  • Travel by applicants seeking to resume ongoing employment in the United States 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. 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 United States:
    • Senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating substantial knowledge and expertise within the organization that can only be replicated by a new employee after extensive training;
    • 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 United States 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.

L-1B applicants

  • 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. 
  • 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. 
  • Travel by applicants seeking to resume ongoing employment in the United States 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:
    • Proposed job duties and specialized knowledge indicate that the individual will provide significant and unique contributions to the petitioning company
    • Individual’s specialized knowledge is specifically related to a critical infrastructure need; AND
    • 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 following extensive training.

J-1 applicants

  • Provide care for a minor U.S. citizen, legal permanent resident (LPR), or nonimmigrant by an au pair possessing special skills required for a child with particular needs (e.g. medical, special education, or sign language).
  • An au pair that prevents a U.S. citizen, LPR, or nonimmigrant from becoming a public health charge or ward of the state.
  • Childcare services provided for a child whose parents are involved with the provision of medical care to individuals with COVID-19 or medical research to combat COVID-19.
  • 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. designed to promote U.S. national interests if the agreement was in effect prior to June 24th.
  • Interns and trainees on U.S. government agency-sponsored programs that support the immediate and continued economic recovery of the U.S.
  • Specialized teachers in accredited educational institutions, demonstrating the ability to make specialized contribution to the education of students in the U.S.
  • Exchange programs that fulfill critical and time sensitive foreign policy objectives.

H-4, L-2, and J-2 applicants

  • National interest exceptions are available for those dependents who will be joining a principal applicant that has been granted one of the above exceptions.

Please reach out to your designated Meltzer Hellrung professional if you have any questions or concerns or contact us at consultation@meltzerhellrung.com for assistance.