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On August 12, 2020, the Department of State (DOS) updated and expanded guidance regarding exceptions to the employment-related entry suspensions (Presidential Proclamations 10014 & 10052). As a reminder, these are the proclamations meant to prevent economic harm to U.S. workers due to the effects of COVID-19 on the economy by suspending entry of certain people eligible to immigrate permanently and certain H-1B, H-2B, L-1, and J-1 visa holders and applicants.
People physically in the U.S. on June 24, 2020 are exempt
The most welcome news is that the proclamation does not apply to those people who were in the United States on the effective date, June 24, 2020. DOS does not include any limitations on the status a person needs to have held to qualify. Whether this means that persons in the U.S. on that date are exempt in all circumstances remains to be seen.
This does not exempt anyone from other entry suspensions, which are still in effect. Specific advice regarding international travel should always be obtained before making international travel plans or traveling outside the U.S.
People outside the U.S. holding a valid visa and entering on that visa or with another travel document are exempt
Those who were not in the United States but who had a valid visa in a banned category on June 24, 2020, are also exempt if they are entering on that visa.
Some confusion remains on this point. Based on statements by a DOS representative at a recent conference, this exemption may be interpreted narrowly. If a person was outside the U.S. on June 24, and had a valid L-1 visa, for example, entry would be allowed on that L-1 visa (if still valid at the time of entry). It is unclear whether that person remains exempt from the ban for future entries after that visa expired. The answers provided at the conference also raise questions about whether this exemption is for one entry only or for all future entries on that visa.
Also exempt are those with an “official travel document” on June 24, 2020, which we assume to mean an advance parole, boarding foil, or other similar document that allows legal entry.
Again, the DOS statement does not exempt people from other entry suspensions, which are still in effect.
National interest exception explained
The proclamations provided an exception for those whose entry would be in the “national interest.”
The new DOS guidance provides a detailed explanation of what should be considered by consular officers to meet that standard. It is not written as an exhaustive list, leaving room for advocacy at the consulates.
The only national interest exception recognized for immigrant visas is for children who are “aging out” (i.e., turning 21 and no longer able to immigrate with their parents).
Exceptions for H-1B and L-1 include the following highlights:
- “Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.” As DOS explains: “Forcing employers to replace employees in this situation may cause undue financial hardship.”
- “Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).”
- “Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.”
For H-1Bs only, an exception is provided for “travel by technical specialists, senior-level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.” To qualify for this exception, two of five factors must be present. The factors are aimed at determining whether the H-1B worker is taking a job that should be made available to or could be filled by a U.S. worker.
For L-1As (managers and executives of international companies), an exception is provided for “travel by a senior-level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. 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.” To qualify, two of three factors must be present, including the seniority of the position, the number of years working for the company, and whether the person would be filling a “critical business need.”
A similar exception for critical infrastructure jobs is provided for L-1Bs (specialized knowledge workers for international companies).
Exceptions are also provided for H-2B and J-1 workers.
Spouses and minor children
Dependents (H-4, J-2, or L-2) may be granted a national interest exception if the principal (H-1B, J-1, or L-1) has been granted an exception.
Dependents of those who are exempt from the proclamation are also exempt and need not apply for a national interest exception.
Procedure and practical challenges
Consular offices are not yet fully operational. To obtain a national interest exception, the consulate must grant an interview, which will be subject to availability. Each consular office will provide instructions about how to apply for the exception. At some offices, only emergency appointments are being provided.
If the applicant has been in a country that is subject to entry suspensions because of COVID-19 transmission concerns (China, Iran, the Schengen area of Europe, UK, Ireland, Brazil) within the last 14 days, also it is unclear whether the consulate will waive that ban if the national interest exception requirements are met.
A national interest exception also has been published by DOS for people present in the Schengen area of Europe, UK and Ireland. This exception includes those “seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.”
Additionally, Customs and Border Protection (CBP) has a process for considering national interest exceptions that may be more flexible.
Because procedures seem to vary, we recommend exploring all options.
Always seek specific advice before traveling
Because the rules are so complex, we strongly urge you to seek specific advice before making international travel plans or leaving the United States.