State Department Offers Exceptions to Trump’s Visa Ban

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.

^{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.}