August 19, 2020

U.S. State Department Issues Update to Presidential Proclamation

Following the U.S. Presidential Proclamation on June 22 suspending entry to the U.S. of H-1B, L-1, H-2B and J-1 non-immigrants and their dependants, the U.S. State Department has now issued some eagerly anticipated updates that will apply to those who have had previously approved employment in the U.S. and those who may be eligible under national interest exceptions.

What has changed?

The new guidance issued by the U.S. State Department advises that foreign nationals who have previously held approved employment in the U.S. may obtain a new H-1B or L-1 visa if they are applying to return to the country with the same employer and in the same visa category, or if the role meets other needs deemed important to the U.S. national interest and economic recovery. The employee would also need to meet strict entry criteria relating to their expertise. This new exception is in addition to the Covid-19 related exceptions already in place under the current entry suspension.

The U.S. State Department has also advised the following for H1- B, L-1A and L-1Bs:

An H-1B applicant may be eligible for a national interest exception if two out of five possible criteria are met, including the applicant’s proposed job duties indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need and is a senior level placement, or the H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.

L-1A applicants may also be eligible under the national interest exception, again having to meet two out of a possible five criteria, including senior-level executive or managerial experience, or having spent multiple years with the company overseas. Applicants would need to demonstrate substantial levels of knowledge and expertise that can only be replicated by a new employee within the company following extensive training, which would cause the employer financial hardship. The exception is unlikely to apply to those seeking to establish a new office in the U.S., unless it will employ five or more U.S. workers in addition to meeting two of the three criteria.

L-1B visa applicants may be eligible for a national interest exception as technical experts or specialists meeting a critical infrastructure need. In this case, applicants need to meet all three stipulated criteria, including demonstrating that the proposed job duties and specialized knowledge that the individuals bring provide significant and unique contributions to the petitioning company, and the applicant’s specialized knowledge is specifically related to a critical infrastructure need.

What to expect / impact

Those who wish to apply for a H-1B or L visa for the U.S. and who believe they are eligible under the national interest exceptions should request an emergency appointment at their relevant U.S. consulate. They will need to provide the reasons they believe they are eligible for the exception. If they are granted an emergency appointment, they will need to attend the interview in person and a final decision on their eligibility will be made at that time. If approved, their dependants will also be permitted to benefit from the exception.

Please note however, due to Covid-19-related delays and reduced operational abilities at the consulates, even if an applicant is eligible for the national interest exception, their travel could be significantly delayed.

For further information on eligibility for a H1-B or L visa for the U.S. under national interest exceptions, please contact the Sterling Lexicon immigration team at immigration@sterlinglexicon.com.  Alternatively, please visit the US government website for more details.

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