Department of State Provides Guidance to Presidential Proclamation for National Interest Exception

Aug 18, 2020

On August 12, 2020, the State Department issued new guidance that expanded the ways foreign nationals and their employers could overcome Presidential Proclamation 10052 and its suspension of entry of foreign nationals on H-1B, L-1 and certain other temporary visas until at least December 31, 2020. The guidance broadened the “national interest exceptions” to the June 22nd proclamation.

Overall, the guidance provided an exception for health-care professionals working to alleviate the effects of COVID-19; 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; and individuals seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.

For H-1B applicants, there is an exception for technical specialists, senior level managers, and other workers whose travel “is necessary to facilitate the immediate and continued economic recovery of the United States” and who meet at least two of the following five criteria:  (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; (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; (3) the wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent; (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; or (5) denial of the visa will cause financial hardship to the U.S. employer.

Additionally, L-1A applicants can receive a national interest exception if 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 must also demonstrate they meet at least two of the following three criteria 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. However, 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.

As for L-1B applicants, a national interest exception can be received for travel as a technical expert or specialist meeting a critical infrastructure need and satisfy all three of the following requirements: (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.

National interest exceptions are also available for those accompanying or following to join a principal applicant whose travel has been deemed in the national interest. Applicants who are subject to any of these Proclamations, but who believe they may qualify for a national interest exception or other exception, should follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.   While a visa applicant subject to one or more Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request and a final determination regarding visa eligibility will be made at the time of visa interview.

Please note, this is a short summary of the guidance provided by the State Department. Other provisions may apply to each case on an individual basis. To read the State Department’s full guidance, please click here.

Immigration – The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.

Kristine Nazir represents corporations and institutions of higher education with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization.   Prior to joining the firm, Kristine clerked for the Honorable Jeffrey M. Geller at the Baltimore City Circuit Court and for the Department of Justice, Executive Office for Immigration Review at the Arlington Immigration Court. During law school, Kristine interned with the Department of Homeland Security, Immigration and Customs Enforcement, Office of the Principal Legal Advisor and National Security Law Section; the Superior Court of the District of Columbia; and Fragomen, Del Rey, Bernsen, & Loewy LLP. Before attending law school, Kristine also served in Peace Corps Mongolia as a community economic development volunteer.

Melanie Gurley Keeney practices in the areas of employment, immigration and education law. Melanie has been included in Best Lawyers in America ® for 25 years, and has been recognized in all areas of her practice. She also has been named to Missouri & Kansas Super Lawyers ® lists for over 10 years, and has been rated one of the top 50 female lawyers in Missouri and Kansas. She was named a “Top Missouri Lawyer” by St. Louis Magazine and Kansas City Magazine for Immigration Law. Melanie has been distinguished as Best Lawyers ®  St. Louis Immigration Law Lawyer of the Year in 2019, 2015, and 2012, and St. Louis Education Law Lawyer of the year in 2017. In 2016, Missouri Lawyers Weekly presented Melanie with the Women’s Justice Litigation Practitioner Award and in 2014, Washington University School of Law honored Melanie with the International Women’s Day Award for Employment Law. She has served as an adjunct professor at Washington University and is a frequent presenter on legal topics. Melanie is a founding Shareholder of the Firm and currently serves as the Chairperson of the Firm.

Diane Metzger practices in the areas of immigration law and employment law.   From large multi-national employers to small employers who have no prior experience with our nations’ complex immigration laws, Ms. Metzger represents and provides counsel to clients with a wide range of business immigration needs, including but not limited to obtaining non-immigrant visas (e.g. H-1B, L-1, TN, E, O); applying for permanent residency (e.g., PERM, Schedule A, EB-1); navigating the naturalization process; consular processing and other applications made directly with the U.S. Department of State; out-bound immigration matters when U.S. employees are transferred abroad; and family-based immigration through U.S. citizen relatives.

Ms. Metzger also assists corporate clients with preventive advice and counsel, including advice on immigration-related corporate reorganization issues and corporate compliance & due-diligence matters including, I-9s, E-Verify, and immigration-related audits.   Ms. Metzger regularly provides training to her clients.