INTRODUCTION
GLF has prepared this Newsletter by extensively referencing and utilizing content in AILA8 (Doc. No. 20071630) dated August 12, 2020.
On June 22, 2020, President Trump issued a Proclamation (10014) suspending entry of immigrants as well as those on H-1B, H-2B, L-1, and J until December 31, 2020, and also issued another proclamation (10052) suspending entry of certain additional foreign nationals who present a risk to the labor market during the 2019 novel Coronavirus outbreak. The earlier proclamation (10014) did not apply to those who were already in the US on a valid nonimmigrant visa and to those who had a valid visa issued prior to June 24, 2020.
GLF had earlier issued our Newsletter on Trump’s proclamation – see, our link to referenced Newsletter – https://gem.godaddy.com/s/92dee01
In implementing President Trump’s Proclamation, the Department of State has now come up with certain exceptions who may be issued visas despite the Proclamation, as follows – the details presented below are from AILA Doc. No. 20071630:
NATIONAL INTEREST EXCEPTION
1.Applicants who are subject to the National Interest exception or other exception as determined by the Department of State are advised to follow the procedures for emergency appointments. With the limited visa services at consulates, the applicant must be in a position to prove that the proposed travel is indeed critical or deemed an emergency and provide details to qualify for the exception;
2.ESTA travelers of the Visa Waiver Program are being asked to follow the guidance on Consulates websites to request consideration under the National Interest exception.
H-1B VISA APPLICANTS WHO ARE EXEMPT
1.H-1B visa applicants who are: public health professional, or researcher who are involved in easing the effects of COVID-19 pandemic or those in medical research in an area with significant public health benefit (e.g. Cancer or communicable disease research);
2.H-1B visa applicants who have a request from Government agency or entity to meet critical foreign policy objectives or obligations including those individuals identified by Department of Defense, providing IT support or support or engaging in projects to a government agency;
3.H-1B visa applicant seeking Extensions to resume ongoing employment in the United States in the same position with same employer wherein the position is not replaced; Consular officers would be referring to Form I-129 to determine whether it is “Continuation of previously approved employment without change with the same employer;”
4.H-1B visa holders involving Technical specialists or Senior Managers whose presence is required to make immediate and continued economic recovery of the United States. Consular officers may also look at the following indicators:
a. If Petitioner has a continuing need for the services or Labor by the H-1B Applicant;
b. Whether LCAs are approved by DOL during or after July 2020, indicating the Petitioner needs the H-1B Worker. For LCAs approved prior to July 2020, the consular officer should able to determine the continuing need of H-1B worker and whether the applicant is able to perform the assigned essential functions remotely from outside the United States;
c. Applicant’s job duties with the Petitioner are an indicator that the applicant will provide significant and unique contributions to an employer meeting a critical infrastructure need. Some of the 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. If the Employment in a critical infrastructure sector alone is not sufficient, the consular officers would look for the applicant’s position:
i. Senior Level Managers with the Petitioner performing functions those which are unique and vital to management or its overall success or;
ii. Applicant’s job duties should indicate significant or unique contributions to its Petitioning company ;
iii. Wages paid to applicants should exceed the prevailing wages by at least 15% indicating that he/she is filling an important business need wherein the native American is not available;
iv. H-1B Applicant’s education or training or experience demonstrates extraordinary expertise for the specialty Occupation position such as a doctoral degree or relevant work experience or advanced expertise in the position;
v. The petitioner will face financial hardship in the instances of visa denial, based on the assessment conducted on the visa application indicating financial hardship or inability to meet the financial obligation or operations in the pandemic situation.
L-1 APPLICANTS
1.L-1 visa applicants – those who are public health professionals or researchers who are involved in easing the effects of the COVID-19 pandemic or those in medical research in an area with significant public health benefit (e.g. cancer or communicable disease research);
2.L-1 visa applicants who have a request from Government agency such as U.S Military or entity to meet critical foreign policy objectives or obligations;
3.L-1 visa applicants seeking extensions to resume ongoing employment in the United States in the same position with the same employer wherein the position is not replaced;
4.L-1A visa applicants involving Senior Level Executives or Managers whose presence is required to meet critical infrastructure needs. L-1A applicant must not be seeking to establish a new office in the United States:
a. Applicant should be a Senior Level Executive or Manager;
b. Applicant must have spent multiple years with a foreign entity, indicating substantive knowledge and expertise within the organization wherein no other employee will be in a position to fill in his/ her position and would require extensive training and would cause financial hardships; or
c. The applicant will be filling in a critical infrastructure need.
An applicant seeking to establish new offices in the United States must be in a position to prove two of the three above categories and prove that the new offices will employ directly or indirectly at least five or more US workers.
5.L-1B visa applicants involving Technical experts or specialists whose presence is required to meet critical infrastructure needs. Consular officer may look at the following criteria:
a. Applicant’s specialized knowledge and job duties should indicate that the applicant will provide a significant contribution to its Petitioner;
b. Applicant’s specialized knowledge is related to the Critical Infrastructure need;
c. Applicant must have spent multiple years with a foreign entity, indicating substantive Specialized knowledge and expertise within the organization wherein no other employee will be in a position to fill in his/ her position and would require extensive training and would cause financial hardships.
H-4 AND L-2 APPLICANTS
- National Interest exceptions are available for those H-4 and L-2 dependents who accompany the Principal applicant who has been granted National Interest Exception by the Department of State.
IMMIGRANT VISAS - Applicants whose current Immigrant Visa classification expire before the proclamation gets lifted i.e., December 31, 2020, or within the two weeks thereafter are exempt;
- Immigrant visas covered under proclamations 10014 and 10052 including Diversity visa applicants whose Immigrant visas were issued as of April 23, 2020, are subject to Proclamation restriction unless the applicant can establish their eligibility; No Valid Immigrant Visas will be revoked under the Proclamation.
CONCLUSION
In order to seek exceptions, applicants must first have an approved emergency appointment request and final determination regarding visa eligibility will be made at the time of the interview. Similarly, Travelers who believe who otherwise won’t fall under any of the above exceptions or National Interest may also request a Visa appointment at the nearest Consulate and the Consular officers would determine visa eligibility at the time of the interview. Travelers are advised to refer to the consulate websites for the latest updates and detailed instructions on the available visa services.
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