The US Department of State (DOS) has issued guidance explaining additional ways for H-1B, H-2B, L-1, and J-1 visa applicants to overcome the travel restrictions detailed in President Trump’s June 22, 2020, presidential proclamation (PP 10052). This June 22 proclamation suspended the entry of foreign nationals into the US on H-1B, H-2B, L, and J visas until at least December 31, 2020, and also extended the suspension of entry to the US of most immigrant visa applicants through the end of the year. The DOS guidance, issued August 12, 2020, broadened the exceptions to the June 22 proclamation, but not everyone is pleased. Jesse Bless, American Immigration Lawyers Association’s (AILA) director of litigation, criticized the guidance in an interview in Forbes: “The guidance is an attempt to place new statutory requirements for these visas in violation of the Immigration and Nationality Act and, to the extent the law is ambiguous, without notice and comment to enact regulatory change.” He added: “Some may benefit, but it’s an unlawful attempt nonetheless.”
The DOS guidance confirmed that the June 22 proclamation does not apply to foreign nationals (or their spouses or children) who were in the US on the effective date of the proclamation (June 24), or who had a valid visa in the listed classifications (and plan to enter the US on that visa), or who had another official travel document valid on the effective date of the proclamation. For others, the DOS guidance clarified exceptions for foreign nationals coming to US “whose travel would be in the national interest.”
H-1B
Exceptions for H-1B applicants (and spouse and children) include:
Applicants seeking to resume ongoing employment in the US in the same position with the same employer and visa classification;
Healthcare professionals or researchers whose work is either directly or indirectly related to the COVID-19 pandemic, or those who will conduct ongoing medical research in an area with a substantial public health benefit;
Workers requested by a US government agency or entity to meet critical US foreign policy objectives or to meet contractual obligations; or
Technical specialists, senior level managers, and other workers who are necessary to facilitate the immediate and continued economic recovery of the US. With this exception, the DOS notes that consular officers must further determine if the applicant meets an additional two out of five requirements, including, for example, if the H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed, or if the wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least fifteen percent—requirements that appear nowhere in US immigration law or regulation, critics of the DOS guidance noted.
L-1A/L-1B
Exceptions for L-1A and L-1B applicants (and spouses and children) include:
Applicants seeking to resume ongoing employment in the US in the same position with the same employer and visa classification;
Healthcare professionals or researchers whose work is either directly or indirectly related to the COVID-19 pandemic, or those who will conduct ongoing medical research in an area with a substantial public health benefit;
Workers requested by a US government agency or entity to meet critical US foreign policy objectives or to meet contractual obligations; or
For L-1A: Senior level executives or managers filling a critical business need of an employer meeting a critical infrastructure need (along with additional requirements including one that if the L-1A is establishing a new US office the new office must employ, directly or indirectly, five or more US workers—a requirement, as immigration attorneys have pointed out, that appears nowhere in US immigration law or regulations); or
For L-1B: Technical expert or specialist meeting a critical infrastructure need (along with additional requirements for this exception).
H-2B and J-1
The DOS guidance also provides exceptions for H-2B workers requested by a US government agency or entity to meet critical foreign policy objectives or to meet treaty or contractual obligations as well as those coming to the US to facilitate the immediate and continued economic recovery of the United States, as long as certain other requirements are met. J-1 au pair workers may be allowed under an exception if they are coming to care for a minor US citizen, lawful permanent resident, or nonimmigrant in lawful status and the au pair possesses special skills required for a child with particular needs, or for childcare services for parents involved in medical care or research related to COVID-19, among other listed exceptions.
Questions arose as to whether visa applicants would still be subject to the regional COVID-19 travel restrictions (Schengen, UK, Brazil, Iran and China) if they were eligible for one of the new exceptions. A State Department official, speaking to columnist Stuart Anderson in Forbes, confirmed: “If someone is granted a national interest exception from PP 10052 [the H-1B, L-1, etc. ban], they are also excepted from the regional-focused proclamation.” Thus, Anderson explained, according to the State Department a foreign national who would be subject to a “regional-focused proclamation,” including a foreign national in the Schengen Area, could obtain an H-1B, L-1 or J-1 visa if they met the national interest exception criteria.
Even those who meet above criteria for national interest exceptions are still reportedly receiving rejections. “Although the State Department claims to have created these exceptions and exemptions, our clients who meet the requirements are getting refusals on their visa applications,” said Jonathan Wasden, a partner with Wasden Banias LLC and one of the attorneys involved in a lawsuit against the president’s June 22 proclamation. “The State Department is either in total chaos or they are intentionally acting in opposition to their own policy. Either scenario is a problem.” Jeffrey Gorsky, senior counsel at Berry Appleman & Leiden and a former State Department attorney, said in Forbes that the government wants to “rewrite the regulatory standards for the H-1B and L-1 visa categories without having to justify their economic arguments through the rulemaking process. The courts are going to see this guidance for what it is and the government lawyers will have a hard time defending their client.”