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National Interest Exception – NIE to the Presidential Proclamations

On August 12, 2020, U.S. Department of State  announced situations in which national interest exceptions to Presidential Proclamations announced previously may be available for applicants in the H-1B, H-2B, J-1, L-1A, L-1B, H-4, L-2, and J-2 visa categories, and for applicants who may age out.

According to the announcement, the Proclamation does not apply to:

  • Applicants who were in the United States on the effective date of the Proclamation (June 24), or who had a valid visa in the classifications mentioned above (and plans to enter the United States on that visa), or who had another official travel document valid on the effective date of the Proclamation.

Also, if an H-1B, H-2B, L-1, or J-1 non-immigrant is not subject to the Proclamation, then neither that individual nor the individual’s spouse or children will be prevented from obtaining a visa due to the Proclamation.

  • Individuals whose travel would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.  The list below is a non-exclusive list of the types of travel that may be considered to be in the national interest, based on determinations made by the Assistant Secretary of State for Consular Affairs.

Exceptions under P.P. 10052 for certain travel in the national interest by nonimmigrants may include the following:

H-1B applicants:

  • For 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 (e.g. cancer or communicable disease research).
  • 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.
  • 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.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.

In addition, the consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

  1. The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.  Labor Condition Applications (LCAs) approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
  2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  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.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:

    a.)    Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR

    b.)    The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

  3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
  4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.

Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

H-2B Applicants:

  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel necessary to facilitate the immediate and continued economic recovery of the United States (e.g. those working in forestry and conservation, nonfarm animal caretakers, etc).

In addition, the consular officers may determine that an H-2B applicant falls into this category when at least two of the following three indicators are present:

  1. The applicant was previously employed and trained by the petitioning U.S. employer.  The applicant must have previously worked for the petitioning U.S. employer under two or more H-2B (named or unnamed) petitions.  U.S. employers dedicate substantial time and resources to training seasonal/temporary staff and denying visas to the most experienced returning workers may cause financial hardship to the U.S. business.
  2. The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker.  TLCs approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business, and therefore this indicator is only present for cases with a TLC approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-2B worker.  For TLCs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.

Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

J-1 Applicants:

  • Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language).  Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.
  • Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
  • Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
  • 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 United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
  • Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
  • Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States.  A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.

Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.

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.  This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
  • 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.  An example of this would be supporting U.S. military base construction or IT infrastructure.
  • 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. Critical infrastructure sectors 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.

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:

  1. Will be a senior-level executive or manager;
  2. 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. 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. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
  • 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. An example of this would be supporting U.S. military base construction or IT infrastructure.
  • 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.

In addition, the consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:

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

H-4, L-2, and J-2 Applicants:

National interest exceptions are available for those who 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 P.P. 10052. Note, a national interest exception is not required if the principal applicant is not subject to P.P. 10052 (e.g. if the principal was in the United States on the effective date, June 24, or has a valid visa that the principal will use to seek entry to the United States).  In the case of a principal visa applicant who is not subject to P.P. 10052, the derivative will not be subject to the proclamation either.

Exceptions for the Applicants who are subject to aging out of their current immigrant visa classification before P.P. 10014 expires or within two weeks thereafter.

Applicants for immigrant visas covered by Presidential Proclamation 10014, as extended by P.P. 10052, including Diversity Visa 2020 (DV-2020) applicants, who have not been issued an immigrant visa as of April 23, are subject to the proclamation’s restrictions unless they can establish that they are eligible for an exception.  No valid visas will be revoked under this proclamation.

We will regularly update the blog as soon as any new information is available.

 

Disclaimer

This article aims to provide new information concerning Presidential Proclamations, and U.S. Department of State guidance on the same. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

 

 

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