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State Department Offers Exceptions to Trump’s Visa Ban

On August 12, 2020, the State Department issued guidance on the national interest exceptions to the presidential proclamation that suspended entry of certain visa categories.1 That proclamation, signed by President Donald Trump on June 22, 2020, argued that the continued entry of immigrants and nonimmigrants under certain visa categories would pose a threat to the employment of U.S. workers because it would displace them during COVID-19 recovery.

The June 2020 proclamation suspended entry of all nonimmigrants and their dependents applying for H-1B, H-2B, L, and J visas from outside the United States who already did not have a valid U.S. nonimmigrant visa or any valid official travel document such as a transportation letter, an appropriate boarding foil2, or an advance parole on the date the proclamation was issued. However, the proclamation did outline exceptions for foreign workers entering the United States to perform temporary labor in America’s food supply chain as an essential employee. It also included exceptions for those whose entry into the United States is considered of national interest by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The National Interest Exceptions guidance issued by the State Department puts in place several concessions that may weaken the proclamation and offer solutions to those applying for nonimmigrant temporary visas from abroad. According to the State Department, some of the key exceptions under the national interest waiver for nonimmigrants include:3

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H-1B visas for “specialty occupations”

  • For public health officials, researchers, and professionals working directly or indirectly to lessen and alleviate the effects of COVID-19.

  • For individuals whose travel is requested by a U.S. government agency to meet critical foreign policy objectives.

  • For individuals traveling to resume ongoing employment in the United States in the same position, with the same employer, and under the same visa classification as previously held.

  • For individuals working as technical specialists, senior level managers, and others whose travel to the United States is necessary for continued U.S. economic recovery and whose employment is designated as needed by a petitioning employer, Labor Condition Application, and the Department of Labor.

H-2B visas for temporary nonagricultural seasonal workers

  • For individuals whose travel is requested by a U.S. government agency to meet critical foreign policy objectives or to satisfy treaty obligations.

  • For individuals whose entry to the United States will help facilitate immediate and continued economic recovery. For example: for those working in forestry, conservation, and as nonfarm animal caretakers.

J-1 visas for exchange visitors

  • For individuals possessing special skills needed to provide childcare as an au pair for U.S. minors and for children of those in lawful status. Special childcare needs may include medical, special education, or sign language.

  • For au pairs whose entry prevents U.S. citizens, Lawful Permanent Residents and those in lawful status from becoming a public health charge or ward of the state.

  • For individuals who provide childcare for children of medical professionals involved in caring for individuals with COVID-19 or involved in research that helps combat effects of COVID-19.

  • For individuals who are part of an exchange program subject to a contractual agreement between a foreign government and the U.S. federal, state, or local government that is designed to promote U.S. national interests. The agreement between the two parties must be in effect prior to the Presidential Proclamation issue date.

  • An exchange visitor participating in a program hosted by the U.S. government agency which supports immediate and continued U.S. economic recovery.

  • An exchange visitor participating in a program where they will be teaching full-time, with a substantial in-person curriculum, at a public or private primary or secondary educational institution. The applicant must demonstrate an ability to make substantial contribution to the United States education system and its students.

  • For visitors participating in exchange programs that help critical and time-sensitive foreign policy objectives.

L-1 visas for intracompany transfers

  • For public health and health care professionals or researchers traveling to the United States to help lessen the effects of COVID-19 or to conduct ongoing medical research that could benefit public health. Individuals work may be in an area that helps alleviate secondary effect of the pandemic.

  • For individuals whose travel is requested by a U.S. government agency to meet critical foreign policy objectives such as working in a military base construction or IT infrastructure.

  • For individuals traveling to resume ongoing employment in the United States in the same position, with the same employer, and under the same visa classification as previously held.

  • For individuals in a senior level executive or manager position traveling to the United States to meet a critical infrastructure need including chemical, communications, dams, defense industrial, emergency services, etc.

These exceptions from the State Department may help reduce some backlash from business and trade entities who have filed several lawsuits against the Trump administration for the proclamation. In July, the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Retail Federation filed a lawsuit against the Department of Homeland Security and the State Department claiming that the visa restrictions would drive talented individuals away from the United States. On August 11, 2020, that lawsuit was supported by tech firms including Amazon, Facebook, Apple, Twitter, Microsoft, and Netflix, who rely heavily on H-1B visa holders for specialized talents.

While the guidance does not change the proclamation or eliminate the existing litigation against the administration, it does offer some relief by creating fairly expansive exceptions for individuals and their dependents, who otherwise would not qualify for a temporary visa, to apply to travel to the United States even under the presidential proclamation. A very significant exception is for those individuals who are applying for H-1B and L visas to resume ongoing employment in the United States and their family members. This exception could help reunite family members stranded abroad due to the June order as well as assist U.S. employers from financial hardship which may be caused from replacing foreign workers barred from traveling to the United States. The policy also generally broadens exceptions to the ban on H, L, and J visas by allowing medical professionals directly or indirectly working on COVID-19, their dependents, and individuals coming to support them, such as au pairs, to travel to the United States. It also exempts those traveling on J visas who are performing public health duties as well as carrying out critical and time sensitive foreign policy objectives.

However, critics of the guidance argue that some requirements listed in the State Department exceptions still exceed current immigration law and regulation. The guidance requires employers to pay an H-1B applicant a wage rate that exceeds the prevailing wage rate by at least 15%, suggesting that such an employee “fills an important business and where an American worker is not available.” This is a higher standard than exists in current regulation, implemented without explanation as to how the salary links to necessity of the worker. The education guidance requires an H-1B applicant’s expertise, including education and training, to demonstrate “unusual expertise in the specialty occupation in which the applicant is employed,” again a standard higher than exists in current regulation. For the L-1A visa category, the guidance requires those looking to establish a new office in the United States to employ at least five or more U.S. workers in order to qualify for a visa. As noted, these provisions do not appear in current U.S. immigration law and regulation and may be seen as substituting a new administration-driven policy for the categories that supersedes that passed by Congress, making it a potential avenue for future litigation.

Qualifying for one of these national interest exceptions is still at the discretion of the consular officers who adjudicate these visas at consulates around the world, and comes on top of complex and bureaucratic nature of applying for nonimmigrant work visas by employers and foreigners. The additional requirements and documentation needed to prove qualification for one of these exceptions could continue to extend the time needed for visa processing at U.S. consulates where it has already slowed due to COVID-19. The State Department expects demand for U.S. visas to drop by 82% in 2021 compared to 2018, and that the added complexity of this process might dissuade more from applying. While the Trump administration purports that the restrictions will protect jobs for U.S. workers, these visa restrictions do not appear to present evidence they would increase U.S. employment and the exceptions show that foreign workers continue to play an important role in the U.S. work force. Instead of relying on executive actions that are subject to interpretation and court challenge, the United States should strive for a well-managed immigration system that can be flexible and responsive to changing needs at a time of crises, which would require congressional action. In the meantime, these exceptions may provide relief to some workers and employers who are needed in the national interest.

End Notes:

1 1 The Presidential Proclamation expires on December 31, 2020.
2 You can apply for a transportation letter or a boarding foil if your Green Card is lost, stolen, or destroyed. Boarding foils are valid for 30 days for single entry and can be obtained after a consular officer verifies your LPR status through an interview process.
3 This is not an exhaustive list.

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