National Interest Exception Criteria Clarified by DOS
/Background:
On June 22, 2020, President Trump signed a Presidential Proclamation (P.P. 10052) which suspended the entry and issuance of nonimmigrant visas (NIV) for applicants applying an H-1B, H-2B, L-1, and certain J-1 visas.
The US Department of State (DOS) has now issued new guidance clarifying how applicants subject to the visa suspension may qualify for a National Interest Exception (NIE).
National Interest Exceptions:
H-1B – Specialty Occupation
A) Public Health
1) Travel as a public health or healthcare professional, or researcher to alleviate the effect of the COVID-19 pandemic. This includes those who may provide an impact to any secondary effects of the pandemic.
B) Request by US Government Agency
1) At the request of a US Government agency or to meet critical US foreign policy objectives, or to satisfy treaty or contractual obligations.
C) Resume Ongoing Employment
1) Applicants resuming ongoing employment in the US in the same position, with the same employer and visa classification. Consular officers are directed to refer to Part II, Questions 2 of the approved Form I-129 for confirmation of the position.
D) Continued Economic Recovery of the US – two of the following five MUST be present
1) The US Employer has a continuing need for the position demonstrated by when the LCA was approved during or after July 2020, OR, where an LCA is approved before July 2020 the consular officer must be able to determine the continued need of the applicant. However, if it is evident the applicant can perform the essential functions of the role remotely, this criterion cannot be met.
i) Senior-level position OR job duties that are unique and vital to the management and success of the business OR specialized qualifications with significant and unique contributions where the employer is meeting a critical infrastructure need .
ii) The wage rate paid meaningfully exceeds the prevailing wage rate by at least 15%.
iii) The applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation - doctorate degrees, professional degrees, or substantial years of relevant work experience
iv) Denial of the visa will cause financial hardship to the US employer, such as an inability to meet financial or contractual obligations, or an impediment preventing a return to the employer’s pre-COVID 19 level of operations.
L-1A - Intracompany Transfer | Managers & Executives
A) Public Health
1) Travel as a public health or healthcare professional, or researcher to alleviate the effect of the COVID-19 pandemic. This includes those who may provide an impact to any secondary effects of the pandemic.
B) Request by US Government Agency
1) At the request of a US Government agency or to meet critical US foreign policy objectives, or to satisfy treaty or contractual obligations.
C) Resuming Ongoing Employment
1) Applicants resuming ongoing employment in the US in the same position, with the same employer and visa classification. Consular officers are directed to refer to Part II, Questions 2 of the approved Form I-129 for confirmation of the position.
D) Critical Business Need – two of the following 3 must be met
1) 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.
4) NOT AVAILABLE FOR NEW OFFICE L-1s unless two of the three criteria are met AND the new office will employ five or more US workers.
L-1B - Intracompany Transfer | Specialized Knowledge Employees
1) Public Health
i) Travel as a public health or healthcare professional, or researcher to alleviate the effect of the COVID-19 pandemic. This includes those who may provide an impact to any secondary effects of the pandemic.
2) Request by US Government Agency
i) At the request of a US Government agency or to meet critical US foreign policy objectives, or to satisfy treaty or contractual obligations.
3) Resuming Ongoing Employment
i) Applicants resuming ongoing employment in the US in the same position, with the same employer and visa classification. Consular officers are directed to refer to Part II, Questions 2 of the approved Form I-129 for confirmation of the position.
4) Critical Business Need – ALL 3 criteria MUST be met
i) The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
ii) The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
iii) 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.
How to request a National Interest Exception:
Applicants who believe they qualify for a National Interest Exception are directed to follow the instructions on the nearest US Embassy or Consulate’s website.
The travel bans impacting travel from China, Iran, the Schengen Area, UK and Ireland, and Brazil within 14 days of entry to the US are still in effect. Obtaining a National Interest Exception for one of the above-mentioned visa categories does not necessarily exempt the applicant from the relevant travel ban.
Ellis Porter’s Analysis:
US Embassies and Consulates worldwide apply their own discretion when interpreting DOS guidance. It is important to note that there is no one-size-fits-all approach when applying for a National Interest Exception at a US Embassy or Consulate. Every case will depend on the employer’s industry and need, the position, and the applicant’s education, skills, and experience.
Over the years we have worked with clients around the world to successfully prepare waivers and request emergency visa appointments on their behalf. We understand, even in the pre-COVID world, dealing with US Embassies and Consulates can be difficult and required substantial evidence to support the consular officer’s decision to grant an emergency appointment or waiver. Given the current economic and political climate, coupled with the ongoing pandemic, it is essential to work with immigration counsel to develop a thorough strategy with well-reasoned arguments and robust evidence to demonstrate, categorically, how an applicant meets the requirements to qualify for a National Interest Exception.
Questions?
If you have any additional questions about how the presidential proclamation or the National Interest Exceptions impacts you, please contact Ellis Porter and we will be happy to provide further clarification and assistance.