New guidance for H-1Bs and L-1s

Navigating the National Interest Exception to the Presidential Proclamation

If you are a U.K. or Irish citizen and either hold or are applying for an H-1B or L-1 visa, you likely will be impacted by two Presidential Proclamations barring the entry of certain persons to the United States—the first barring the entry of individuals who have been physically present in the United Kingdom or Ireland for the past 14 days, and the second barring the entry of H-1Bs and L-1s applicants specifically (as well as several other visa categories). In order to obtain a visa and enter the United States, you will need to obtain the so-called “National Interest Exception” (NIE) waiver to the Proclamations.

Due to the complexity of the Proclamations, this article focuses on H-1B and L-1 applicants only. See our separate “Navigating the National Interest Exception” guidance for business travelers, i.e., those who normally travel through the Electronic System for Travel Authorization (ESTA) or with a B1/B2 visa.

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Barriers to entry: Guidance for H-1Bs and L-1s

If you are an H-1B or L-1 visa holder or you plan to apply for one of these types of visas, you are impacted by Presidential Proclamations 9996 and 10014.

Proclamation 9996 is known as a “regional” Proclamation because it is one of several entry restrictions applying to individuals physically present in certain regions (other regional Proclamations impact travelers from the Schengen Area, China, Brazil, etc.).

Proclamation 10052 is known as a “labor market” Proclamation because it was designed to restrict the entry of individuals seen as competing with U.S. workers as the country tries to recover economically from the impact of COVID-19.

On March 14, 2020, the US President, through Proclamation 9996, suspended the entry of all foreign nationals physically present in the United Kingdom or Ireland for the 14-day period preceding their entry or attempted entry in the United States. The effective date of Proclamation 9996 was March 16, 2020.

On June 22, 2020, the President, through Proclamation 10052, suspended the entry of certain H-1B, H-2B, J, and L non-immigrant visa applicants. The Proclamation went into effect on June 24, 2020. Although this Proclamation did not automatically revoke visas of the above types which were valid on that date, the visas would not have been good for entry for those physically present in the U.K. or Ireland in any case, due to Proclamation 9996.

A sea of exemptions and exceptions

Part of what makes travel to the United States so complicated at this stage is that travelers may be exempted from both Proclamations, neither, or one but not the other. Other travelers are subject to one or the other Proclamation but may nonetheless qualify for an exception. For example, certain J visa applicants are excepted from the “labor market” Proclamation.

The key exception, however—and one available for both Proclamations—is for those whose entry to the United States is deemed to be “in the national interest.”

Who decides?

If you believe you qualify for the NIE waiver it is important for you to understand who will really decide your case.

Sometimes there is a confusing division of labor between the Embassies and Consulates, which are managed by the Department of State, and Customs and Border Protection (CBP), which is part of the Department of Homeland Security and which governs the entry of travelers to the United States at ports of entry.

In general, one gets a visa from an Embassy, and one presents that visa to a Customs and Border Protection officer at a port of entry, e.g., JFK. It is important to remember that the CBP officer always has the final say as to whether the traveler is allowed to enter the country.

Unfortunately, the “regional” Proclamation did not make clear what the division of labor was supposed to be between the Embassies and CBP. This caused confusion; for example, a traveler who fell under the “regional” Proclamation who happened to be the spouse of a U.S. citizen could establish their qualification for this exemption by showing their marriage certificate at a port of entry or to the airline agent, even though their ESTA would have been automatically cancelled by the Proclamation. If the traveler would have qualified for ESTA but for the “regional” Proclamation, or if they already held a valid visa, they could travel without having to deal with a U.S. Embassy or Consulate. It was often unclear who needed to make an appointment at the Embassy and who didn’t.

In contrast, the “labor market” Proclamation explicitly directs the Department of State and its Embassies and Consulates, as opposed to CBP, to adjudicate whether or not an individual is subject to the Proclamation, and, if so, whether or not they qualify for an exception. The approval or refusal of that exception is then documented electronic systems shared by both agencies.

The reason for this change is that CBP, in general, has little appetite for adjudicating such matters at ports of entry. CBP prefers that adjudications as to what travel is “in the national interest” are decided by consular officials; in fact, the very purpose of a visa, in ordinary times, is to signal to everyone the traveler encounters—including the airline agent at the beginning of travel or the immigration officer at the end—that the bearer has been vetted by the U.S. Government. Thus, in order to alleviate pressure on CBP and airline agents, each successive Proclamation has placed more power in the hands of the Department of State and its Embassies and Consulates.

Therefore, obtaining approval for an exception to the “labor market” Proclamation is very much like getting a visa. This is good news for several reasons.

First, if one comes under both the “labor market” Proclamation and the “regional” Proclamation, approval by an Embassy or Consulate for a national interest exception will be valid for both Proclamations.

Second, consular officers now have broad discretion to grant NIE approvals. In other words, CBP typically takes the consular officer’s decision at face value, just as they do with visas.

Finally, consular officers are diplomats and not law enforcement officers. They conduct interviews and gather evidence differently than immigration officers at ports of entry, and this is sometimes an advantage to the traveler. As diplomats, they are expected to gather and assimilate knowledge about local conditions, patterns, and circumstances, and they are encouraged to use that contextual knowledge in their decision-making.

How to apply under the National Interest Exemption

Now that you have this background, you might be wondering how you apply for the NIE waiver. The first step is to decide exactly which benefit to apply for: the NIE waiver alone, or a visa.

If you already have an H-1B or L-1 visa that was valid on June 24, 2020 and is still valid, you are not subject to the “labor market” Proclamation. Therefore, if you would not have needed a new visa in the absence of the pandemic, you do not need one now. Nevertheless, as discussed above, presence in one of the areas covered by the “regional” Proclamation for the past 14 days means your visa is not good for entry. If this is the case for you, you need to contact the Embassy by phone or email and ask for the procedure to apply for the NIE waiver alone. There is no government application fee for applying for the NIE waiver. If you qualify, you will be issued with a letter (or email) from the Embassy showing your approval, and, more importantly, the consular officer will make a note in the database which is visible to CBP at the port of entry which certifies that he or she approved your NIE waiver.

The vast majority of H-1B or L-1 travelers did not hold an H-1B or L-1 visa that was valid on June 24, 2020 and which remains valid, or even if they do, have another reason why they would need a new visa anyway, e.g., a Blanket L-1 visa holder whose I-129S admit-until date is expiring. If you are one of these travelers, you must apply for the NIE waiver by making an application for a visa.

You will need to apply for the visa using the State Department’s web site, and then make an appointment for a visa using the appointment system.

After you make your appointment – which is likely to be many weeks in the future because of the current suspension of routine visa processing – you will need to request an “expedited appointment” using the same appointment system. One presents a case for qualifying for the NIE in the context of this request for an expedited appointment. There is no other way to apply for a visa and NIE other than by proceeding through the steps above using the official appointment system; a visa application cannot be made through a phone call or an email.

How do you qualify for the NIE waiver?

Below we share the basic qualifications for the NIE waiver for H-1Bs and L-1s. Please note these descriptions are truncated. For full detail regarding the qualifications, consult the State Department’s website or contact us for specific advice.

H-1B applicants

H-1B applicants who are health professionals or researchers traveling to the United States to assist in the alleviation of COVID 19 or participating in research with a substantial public health benefit, or those who are traveling at the request of the U.S. government, will be favorably considered for NIE.

Under more recent guidance, H-1B applicants may also qualify for NIE who are resuming ongoing employment in the United States in the same position with the same employer and visa classification as held previously.

H-1B applicants may also qualify for an NIE if they are technical specialists, senior level managers, and other workers whose travel is “necessary to facilitate 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 nonimmigrant in the United States.
  • 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 H-1B 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.
  • The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.
  • Denial of the visa pursuant to Proclamation 10052 will cause financial hardship to the U.S. employer.

L-1A Applicants

L-1A Applicants, regardless of whether they are Blanket or Individual, may qualify for NIE if they fall into one of the following categories:

  • 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.
  • L-1A applicants may also qualify for the NIE waiver if they are a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. See the list above for the critical infrastructure sectors. 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:
    • The L-1A will be a senior-level executive or manager;
    • The L-1A 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
    • The L-1A 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

L-1B Applicants, regardless of whether they are Blanket or Individual, may qualify for NIE if they fall into one of the following categories:

  • 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.
  • L-1B applicants may also qualify for the NIE waiver if they are a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. See the list above for the critical infrastructure sectors. The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
    • 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.

What happens if my NIE is denied?

If the consular officer finds that you do not qualify for the NIE, they will refuse the visa under Sec. 212(f) of the Immigration and Nationality Act. This will remain on the record as a refusal, and will be available to any consular or CBP officer in the future.

Although there is some debate about whether or not a 212(f) denial should have the same legal effect as other types of denials, so far, the U.S. government is treating such denials as if they were temporary ineligibilities. Therefore, one can expect that a 212(f) denial would have the same impact on future travel as would any other visa denial.

What are the implications of this? First, the denial will remain on record permanently. Second, future ESTA applications will automatically be denied by CBP until the applicant applies for a visa, is interviewed by a consular officer, and is granted the visa—even if the planned travel at that point is not for employment in the United States but only for pleasure or business. Third, at the point of this future visa application, regardless of the visa category applied for, the consular officer will need to be satisfied that the 212(f) denial no longer applies and can be overcome. Although CBP policies may change in the future, based on current policy, only after ten years of visa travel without incident may the applicant expect to be granted ESTA again.

Not a simple matter

Unfortunately, the process of applying for the NIE waiver or the visa based on the NIE is complex and time-consuming. A misstep at this stage could entail serious consequences for the ability to travel to the United States in the future. In addition, as the U.S. Embassy has limited on-site staffing due to the pandemic, the case must be a strong one to justify the expedited interview appointment.

To find out whether you qualify for the NIE waiver, seek advice. The U.S. immigration attorneys at NNU Immigration are immigration specialists are aware of the latest trends and information bearing on adjudication of the NIE and the Proclamations at the U.S. Embassy in London and the U.S. Consulate in Belfast.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: September 29, 2020