Presidential Proclamation 10052 took effect on June 24, 2020 and

suspends the issuance of H-1B, H-2B, L-1, and J-1 visas to certain

foreign nationals through December 31, 2020. The proclamation also

prevents spouses and children of these foreign nationals from being

issued H-4, L-2, or J-2 visas. The proclamation applies to a

foreign nationals that are 1) outside of the U.S. on the effective

date of the proclamation (June 24, 2020); 2) do not have a

nonimmigrant visa in one of the categories listed above in which

the foreign national is seeking entry, that is valid on the

effective date (June 24, 2020) of the proclamation;

and 3) do not have an official travel document

other than a visa (such as a transportation letter, an appropriate

boarding foil, or an advance parole document) that is valid on June

24, 2020, or issued on any date thereafter that permits the foreign

national to travel to the U.S. and seek entry or admission. There

are several exceptions that may allow foreign nationals to be

issued an H-1B, H-2B, L-1 and J-1 visa between now and December 31,

2020 and/or enter the U.S. Recently, the U.S. Department of State

(DOS) issued guidance that provides more information as to when an

exception may apply. This writing will provide a list of exceptions

to Presidential Proclamation 10052, including a summary of the

recent National Interest Exception (NIE) guidance issued by the

U.S. Department of State (DOS) in August 2020.

Presidential Proclamation 10052 does not apply to the

following individuals:

  • any lawful permanent resident of the

    United States;

  • a foreign national who is the spouse

    or child of a United States citizen;

  • a foreign national who was in the

    U.S. in H-1B, H-2B, L-1, or J-1 status on June 24, 2020;

  • a foreign national in possession of a

    valid H-1B, H-2B, L-1, or J-1 visa issued on June 24, 2020;

  • a foreign national seeking entry into

    the U.S. as an F-1, TN, E, O, P, B, etc., nonimmigrant or issuance

    of a visa in one of these categories (Note: The proclamation only

    impacts those in the H-1B, H-2B, L-1, and J-1 categories. Other

    nonimmigrant visa categories are not affected by the

    proclamation.)

  • a foreign national with valid Advance

    Parole document, transportation letter, boarding foil, etc., on

    June 24, 2020;

  • any foreign national seeking to enter

    the United States to provide temporary labor or services essential

    to the United States food supply chain; and

  • any foreign national whose entry

    would be in the national interest as determined by the Secretary of

    State, the Secretary of Homeland Security, or their respective

    designees.

On August 12, 2020, the DOS provided additional guidance as to

how a foreign national may qualify for a National interest

Exception in order to be issued an H-1B, H-2B, L-1, or J-1 visa.

Based on the guidance, a foreign national may qualify for a

National Interest Exception, based on any of the following:

  • The work or activity is related to

    healthcare or research designed to alleviate the effects of the

    COVID-19 pandemic (H-1B, L-1A, L-1B ONLY)

  • The work or activity is related to a

    request by a U.S. government agency or entity to meet critical U.S.

    foreign policy objectives or satisfy treaty or contractual

    obligations (H-1B, H-2B, L-1A, L-1B ONLY)

  • The work or activity is necessary to

    facilitate the immediate and continued economic recovery in the

    U.S., if two of the three criteria are met: i) the foreign national

    was previously employed or trained by the petitioning U.S.

    employer; ii) the foreign national is traveling to the U.S. based

    on a temporary labor certification (TLC); iii) the denial of the

    visa will cause significant financial hardship to the employer

    (H-2B ONLY);

  • The work or activity entails resuming

    ongoing employment in the U.S. in the same position with the same

    employer in the same visa classification, and forcing employers to

    replace such workers would cause undue hardship (H-1B,

    L-1A, L-1B ONLY)

  • The work or activity is technical or

    managerial in nature and will help facilitate the economic recovery

    of the U.S., if two of the five following criteria are met: i) the

    petitioner shows a continued need for the services or labor and/or

    the case contains Labor Condition Application (LCA) approved on or

    after July 2020; ii) the work or activity is significant and

    contributes to an employer meeting critical infrastructure needs;

    iii) the foreign national's education, training or experience

    demonstrates unusual expertise; iv) the wage rate paid to the H-1B

    worker exceeds the prevailing wage rate by at least 15%; or v) the

    denial of the visa will cause significant financial hardship to the

    employer (H-1B ONLY)

  • The work or activity involves caring

    for a minor U.S. citizen, Green Card holder, or nonimmigrant in

    lawful status by an au pair possessing special skills required for

    a child with particular needs (J-1 ONLY)

  • The work activity prevents a U.S.

    citizen, Green Card holder, or other nonimmigrant in lawful status

    from becoming a public charge in the U.S. (J-1

    ONLY)

  • The work or activity involves

    providing childcare services for a child whose parents are involved

    with providing medical care to others to combat COVID-19 and/or

    engaged in COVID-19 research (J-1 ONLY)

  • The work or activity involves an

    exchange program conducted pursuant to an MOU, Statement of Intent

    or other valid agreement or arrangement between a foreign

    government and any federal, state or local government entity in the

    U.S. that is designed to promote U.S. national interests, if

    agreement with the foreign government was in effect prior to June

    24, 2020 (J-1 ONLY)

  • The work or activity involves interns

    or trainees on U.S. government agency sponsored programs, or

    specialized teachers in accredited educational institutions with a

    program number beginning with G-5 on Form DS 2019, or involves

    critical foreign policy objectives (J-1

    ONLY)

  • The foreign national is a senior

    level executive or manager filing a critical business need or

    critical infrastructure need of the employer, if two of the

    following three criteria are present and the foreign national is

    not seeking to establish a new office: i) the foreign national will

    be a senior level executive or manager; ii) the foreign national

    has spent multiple years with the company overseas, and has

    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 financial hardship to

    the employer; or iii) the foreign national will fill a critical

    infrastructure need of the employer (L-1A

    ONLY)

  • The work or activity involves a

    technical expert or specialist meeting a critical infrastructure

    need, if the following three criteria are met: i) the foreign

    national's proposed job duties and specialized knowledge

    indicate the individual will provide significant and unique

    contributions to the petitioning company; ii) the foreign

    national's specialized knowledge is specifically related to a

    critical infrastructure need; and iii) the

    foreign national 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 (L-1B ONLY).

In order to have a National Interest Exception (NIE) granted,

foreign nationals are first required to request an emergency visa

appointment at a U.S. embassy or consulate by providing preliminary

information as to the basis for the emergency visa appointment

request and/or National Interest Exception request. Once the

emergency visa appointment is granted by the embassy or consulate,

a formal request for the NIE is made by the foreign national at the

time of the visa appointment. The foreign national will need to

bring a signed statement confirming the work or activity to be

engaged in while in the U.S. is in the U.S. national interest,

related to the COVID-19 pandemic, etc. In addition, documentation

supporting the NIE request should also be brought to the visa

appointment. Consular officials have been given broad discretion to

grant NIE requests as part of the visa application process. (Note:

For Canadian citizens who are visa exempt, a National Interest

Exception request is made to a U.S Customs and Border Protection

(CBP) official at a U.S. Class A port of entry.)

The new guidance issued by the DOS provides greater clarity as

to how a foreign national may qualify for a National Interest

Exception, as well as more ways a foreign national may qualify.

There are reports of favorable discretion being exercised by

consular officials with respect to the grant of National Interest

Exceptions. Foreign nationals should make sure their National

Interest Exception request is well documented at the time of their

visa appointment, and be able to articulate how their work or

activity meets one or more of the criteria listed above.

FGI will continue to monitor the impact of Presidential

Proclamation 10052, as well as any future DOS guidance issued that

informs the public how to apply or qualify for a National Interest

Exception and provide updates as information becomes available.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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