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Navigating Through the Constant Changing Sea of Immigration: COVID-19 Visa Restrictions and the National Interest Exception

October 6, 2020

By
Jamila M. Carter
Attorney, Stoll Keenon Ogden PLLC
(859) 231-3079
jamila.carter@skofirm.com

Throughout the COVID-19 crisis, the issuance of several Presidential Proclamations has resulted in ongoing changes to U.S. immigration laws and policies, including several visa bans. Of recent significance is Presidential Proclamation (“P.P.”) 10052 concerning a ban on the issuance of certain temporary work visas. The reasoning offered for the new P.P. 10052 is to help the U.S. economy recover from the economic downturn caused by COVID-19 by protecting the labor market from foreign workers.

P.P. 10052 impacts numerous employers who utilize two popular temporary worker visa categories: H-1B and L-1. H-1B allows an employer to hire and retain an employee who has a bachelor’s degree or higher in a specific academic discipline including engineering, medicine, or certain IT fields. The L-1 visa allows employers with multinational operations to transfer employees who work in senior management-level positions, or who possess specialized knowledge about the employer’s unique processes and technology from an office abroad to the United States. Both the H-1B and L-1 categories require an initial employer petition to US Immigration. If the employees are outside the US at the time the petition is approved, or if they must travel outside the US after the petition is approved, they must obtain an H-1B or L-1 visa at a US consulate before entering or re-entering the US.

The effect of P.P. 10052 on the H-1B and L-1 visa categories depends on where the targeted employee was located at the time of the ban. Prospective or actual employees who are already in the US and who are approved under an H-1B or L-1 for a change or extension of their existing US status may remain in the US and are not affected by the visa ban. Individuals who were outside the US at the time the ban took effect on June 24, 2020, however, are barred from entering; and those who were in the US but who need visas due to future trips are, in effect, prohibited from travelling outside the US until the ban is lifted.

National Interest Exception from the visa ban:

There are several exceptions to the visa ban proclamation. The most applicable and helpful is the National Interest Exception. Under this exception, a temporary worker may enter the United States if an employer demonstrates that it is in the best interest of the United States to allow entry to the particular individual. Recently, the Department of State has issued guidance specifically discussing how an employer can satisfy this requirement.

A. H-1B Temporary Workers
Typically, an H-1B temporary worker can demonstrate that they fall under the National Interest Exception by illustrating that they are a public health or healthcare professional or a researcher who is investigating COVID-19 and its secondary effects. Additionally, an H-1B applicant can utilize this exception if they can demonstrate that their research deals with a major issue of public health.

In addition, this exception may be available if the worker will contribute to the revitalization of the US economy. Most recently, the Department of State has set forth five indicators an H-1B employer can use to illustrate how the worker will help facilitate the economic revitalization of the U.S. economy. An employer will be able to bring an H-1B applicant to the U.S. if two of the five indicators, or more, are satisfied. Below are the five indicators:

1. The employer has a continued need for the services of the H-1B nonimmigrant as indicated by the approved Labor Condition Application.
2. The H-1B temporary worker will make significant and unique contributions to a company that is meeting a critical infrastructure need in the United States.
3. The employee is paid a high wage
4. The H-1B temporary worker’s experience and/or education demonstrates that the employee has an “unusual expertise”
5. Denial of the employee’s visa will cause financial hardship for the employer.

For example, an employer can satisfy one of the indicators by demonstrating that the H-1B applicant will be making “significant and unique contributions” at the company. The company must be satisfying a “critical infrastructure need” in the United States. There are a variety of different industries that are considered critical for purposes of this indicator, including energy, food and agriculture, and transportation. Other indicators focus on the H-1B applicant’s salary and special skills and whether the person’s absence will cause the employer financial hardship.

B. L Temporary Workers
Employers utilizing the L visa category can demonstrate that their employee falls under the National Interest Exception numerous ways. For example, similar to the criteria for H-1B, an L visa employee can fall under the National Interest Exception if the person is a public health or healthcare professional or researcher examining COVID-19 and its secondary effects. Second, if the L visa applicant is returning to the U.S. to resume a particular position with an employer and her absence would cause the employer to experience undue financial hardship, the employee-applicant may be eligible for the L-1 visa.

For L-1A applicants (i.e., executives and managers) to fall under the exception, they must not be coming to the U.S. to set up a new office. Additionally, such applicants must satisfy at least two of the three following criteria:

1. The person needs to be a senior level executive or manager; o Typically, an L-1A temporary worker does not have to be a “senior level” manager or executive. An L-1A employee must only be an ordinary manager and not occupy a high level at the company.

2. The person has spent multiple years abroad and has substantial knowledge that cannot be trained to a new employee without causing financial hardship;
o Under the L-1 category a foreign employee has to only have one year of experience abroad at the related foreign entity. However, in order to satisfy this criterion, the person must have substantial experience abroad;

3. The person is fulfilling a “critical business need” and the employer is meeting a “critical infrastructure need.”

L-1B applicants (i.e., individuals with specialized knowledge of the employer’s unique processes) must satisfy the following criteria to be eligible to come to the United States:

1. Illustrate how the applicant’s job duties and their specialized knowledge will lead to the employee making unique and significant contributions to the company;
2. Demonstrate how the employee will be fulfilling a critical business and how they will help the company contribute to an important infrastructure need; and
3. Describe how the applicant’s unique knowledge cannot be easily ascertained by a new employee.

Immigration law and policies have changed and are expected to continue to change in response to COVID-19. Accordingly, it is important for employers to understand and adapt to the new guidance that is being issued.

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Stoll Keenon Ogden PLLC (SKO) understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for more than 120 years.

If you would like to discuss the National Interest Exception or the various other immigration policies that have been implemented during the COVID-19 pandemic, please contact SKO’s Immigration Practice Group.

Please also be sure to consult the Stoll Keenon Ogden’s Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state and local governments in response to the Coronavirus pandemic.