Latest national interest exemptions to US travel ban
The US State Department has issued further guidance on the types of travel that may be considered to be in the national interest, and as such exempt from the current US travel ban.
Foreign nationals applying for a new H-1B or L-1 visa are now able to do so under the NIE, provided they are returning to the US to continue in a previously approved role with the same sponsor/employer in the same visa category, or where other visa-specific criteria apply.
The latest exemptions are in addition to those previously announced in July, including public health exceptions.
This is a positive development for employers and workers who had been restricted due to the travel ban, although applicants are advised to seek guidance on the procedure to follow to support reliance on the national interest exemption.
Qualification is not automatic: Applying under the National Interest Exemption
Where the NIE may apply, applications will need to be made in line with the specific instructions and procedures of the nearest US Embassy or Consulate, including requesting an emergency visa appointment and submitting evidence to support NIE qualification.
Where an emergency appointment is approved, the applicant must attend in person for interview. The applicant will be informed of the application decision during the appointment.
Note that dependants will also be approved where the principal petitioner has been deemed to qualify under the exception.
The guidance also states that until complete resumption of routine visa services, applicants who appear to be subject to entry restrictions might not be processed for a visa interview appointment unless the applicant also appears to be eligible for an exception. Taking legal advice as early as possible will help to clarify your position and with the processing of any application.
L-1A visa national interest exemptions
L-1A visa applicants may be able to rely on the NIE where they will be returning to the US to resume ongoing employment in the same position with the same employer and visa classification.
Alternatively, a foreign national may be eligible to apply for an L-1A visa under a NIE where they meet two of the following:
- They will be a senior-level executive or manager
- They have 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
- They will fill a critical business need for a company meeting a critical infrastructure need.
The NIE may only apply to new-office L-1As where two of the three above criteria are met and the new office will employ, directly or indirectly, five or more US workers.
L-1B visa national interest exemptions
L-1B visa applicants may be able to rely on the NIE where they will be returning to the US to resume ongoing employment in the same position with the same employer and visa classification.
Or, they may apply under a NIE as a technical expert or specialist meeting a critical infrastructure need, provided all of the following are met:
- The applicant’s proposed job duties and specialized knowledge indicate the individual 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 would cause the employer financial hardship.
H1-B visa national interest exemptions
H-1B visa applicants may be able to rely on the NIE where they will be returning to the US to resume ongoing employment in the same position with the same employer and visa classification.
Alternatively, H-1B 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 may be permissible under an exception where two of the following apply:
- 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.
- 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:
- 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
- The applicant’s proposed job duties and specialized qualifications indicate the individual 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 (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.
- 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 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-1B exceptions are also made for those traveling as healthcare or public health professionals to alleviate the impacts of the COVID-19 pandemic or to perform ongoing medical research in areas with a public health benefit.
US immigration advice
NNU Immigration is actively monitoring the impact of the pandemic on US immigration policy and application processing.
As the situation continues to develop, please contact our US immigration specialists for the latest advice for your specific circumstances.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: August 15, 2020
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
