National interest exceptions to Trump’s US work visa ban

50247334623_43e4f879d9_k.jpg

Trump White House Press Briefing 18 August 2020

White House Photo by Tia Dufour

Comments by Sanwar Ali:

The changes to the work visa ban represent major concessions and is following various legal proceedings against the Trump work visa ban.  Many more people can now apply for US work visas.   Business groups that have issued proceedings include the US Chamber of Commerce, the National Association of Manufacturers and the National Retail Federation. US Chamber CEO Thomas J. Donohue had the following to say:

 "Our lawsuit seeks to overturn these sweeping and unlawful immigration restrictions that are an unequivocal ‘not welcome’ sign to the engineers, executives, IT experts, doctors, nurses, and other critical workers who help drive the American economy. Left in place, these restrictions will push investment abroad, inhibit economic growth, and reduce job creation," 

There have been concerns that the work visa ban will do the opposite of what is intended.  American workers are actually more likely to lose their jobs due to the Trump work visa ban and the economy will suffer.

Donald Trump recently eased his US work visa ban under national interest exceptions. The US President had signed a proclamation on June 22, suspending the entry of migrants in certain US visa categories. Trump reportedly enforced the ban to protect American workers following nationwide job losses caused by the COVID-19 outbreak.

The current suspension, which will be in effect until the end of 2020 and possibly longer, applies to specific US visa categories including:

Suspension does not apply to some visa applicants

The suspension does not apply to US visa applicants who were in the country when the ban came into effect at 12.01am on June 24, or those whose visa was active prior to entering the US, but they still planned to enter on that visa and anyone who held another official US travel document before the suspension started.

In accordance with Trump’s June 22 proclamation, if a US H1B, H2B, L1 or J1 visa applicant is not subject to the executive order, neither they or any spouse or children will be refused a US visa.

National interest exceptions to Trump work visa ban

Further exemptions to the US work visa ban were recently announced for those whose arrival in the US would be deemed ‘in the national interest’. This is determined by the US Secretary of State, the Secretary of Homeland Security and some other officials.

Until full US visa services are resumed, applicants that are seemingly subject to entry restrictions, or regionally-focused restrictions relating to COVID-19, are unlikely to be processed for an appointment for a US visa interview, unless they qualify for an exemption.

Applicants who are subject to entry restrictions, but believe they qualify for an exemption under national interest rules or any other exception, are being advised to contact, or visit the website of, their nearest US Embassy or Consulate for instructions on securing an ‘emergency appointment.’

An applicant must first be approved for an emergency appointment request and at the time of a visa interview, a decision will be made on visa eligibility. US Embassies and Consulates are likely to be offering limited services and may not be able to accommodate emergency appointments, unless travel to the US is deemed ‘mission critical’.

The following exceptions for travel to the US apply across these visa categories under national interest rules:

H1B visa applicants:

  • Public health and healthcare professionals or researchers working on easing the impact of COVID-19 or carrying out ongoing medical research in an area that is significant to public health (i.e. cancer or other communicable diseases). The exemption applies to those traveling to help reduce the secondary effects of coronavirus. For example, 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 affected by the COVID-19 pandemic.
     
  • Those asked to travel at the request of a US government agency or institution that is vital to meeting US foreign policy objectives or to meet treaty and contractual obligations. The exemption applies to individuals, identified by the Department of Defense or another US government agency, performing research, providing IT support/services, or engaging other similar projects essential to a US government agency.
     
  • Travelers looking to resume ongoing employment in the US, provided it’s in the same job position, with the same employer and under the same US visa classification. This exemption applies to ensure that US companies are not forced to replace employees, causing financial hardship.
     
  • Senior level managers and technical specialists, plus other workers whose travel to the US is essential for aiding the country’s economic recovery. Officials will determine if an applicant is eligible for exemption under these circumstances based on five key indicators, including:
     
  1. The petitioning employer has a continued need for the services or labor to be performed by the H1B nonimmigrant in the United States.
  2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.
  3. The wage rate paid to the H1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.
  4. The H1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.
  5. Denial of the visa will cause financial hardship to the US employer.

H2B visa applicants:

  • If travel is based on a request from a government agency in the US to meet specific foreign policy objectives or to adhere to treaty or contractual obligations. An example would be supporting the construction of a US military base – in accordance with the National Defense Authorization Act – or helping with IT infrastructure.
     
  • Travel to the US is necessary to aid the economic recovery of the US. This can include working in forestry and conservation and taking care of non-farm animals. Officials will determine if an applicant is eligible for exemption under these circumstances based on three key indicators, including:
  1. The applicant was previously employed and trained by the petitioning US employer.
  2. The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker.
  3. Denial of the visa will cause financial hardship to the US employer.

J1 visa applicants:

  • Travel to the US is necessary to care for a minor US citizen, LPR or non-immigrant in lawful status by an au pair that has the special skills needed to care for a child with specific needs – for example medical, special education or sign language. Caring for children with health issues diagnosed by a qualified medical professional will be deemed ‘in the national interest.’
     
  • An au pair whose travel to the US does not lead to a US citizen, lawful permanent resident or other non-immigrant in lawful status becoming a public health charge or ward of the state of a medical or other public funded facility.
     
  • Childcare for a child whose parents work in the medical profession caring for people who have contracted COVID-19 or performing medical research at a US facility to help America fight coronavirus.
     
  • Exchange programs that are in accordance with an MOU, Statement of Intent or other valid agreement or arrangement that’s in place between a foreign government or federal, state, or local government entity in the US that is designed to promote American interests if the agreement or arrangement with the foreign government was in effect before Trump’s executive order came into force June 24.
     
  • Trainees and interns that are on sponsored programs endorsed by a US government agency. This includes an exchange visitor participating in an exchange program in which an applicant will be hosted by a US government agency. The program must support the continued economic recovery of the US.
     
  • Specialist teachers working in an accredited educational institution. This includes exchange visitors teaching full-time, much of which must be in-person, in a public or privately operated primary or secondary educational institution that is accredited. The applicant must demonstrate an ability to make a specialist contribution to the education of US students. Specialist teacher applicants must have native or near-native English language proficiency to teach subjects in that language.
     
  • Critical foreign policy objectives. This is only applicable to exchange visitor programs where participation of the applicant meets critical and time sensitive foreign policy objectives.

L1A visa applicants:

  • Public health and healthcare professionals or researchers working on easing the impact of COVID-19 or carrying out ongoing medical research in an area that is significant to public health (i.e. cancer or other communicable diseases). The exemption also applies to those traveling to help reduce the secondary effects of coronavirus.
     
  • Those asked to travel at the request of a US government agency or institution that is vital to meeting US foreign policy objectives or to meet treaty and contractual obligations.
     
  • Travelers looking to resume ongoing employment in the US, provided it’s in the same job position, with the same employer and under the same US visa classification. This exemption applies to ensure that US companies are not forced to replace employees, causing financial hardship.
     
  • Senior-level executives or managers that are meeting a critical business or infrastructure need of an employer. 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.


L1A applicants are eligible for exemptions provided that they meet two of three indicators and they are not looking to setup a new office in the US. The three indicators include:
 

  1. Must be a senior-level executive or manager.
  2. Has spent several years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.
  3. Fill a critical business need for a company meeting a critical infrastructure need.

L1B visa applicants:

  • Public health and healthcare professionals or researchers working on easing the impact of COVID-19 or carrying out ongoing medical research in an area that is significant to public health (i.e. cancer or other communicable diseases). The exemption also applies to those traveling to help reduce the secondary effects of coronavirus.
     
  • Those asked to travel at the request of a US government agency or institution that is vital to meeting US foreign policy objectives or to meet treaty and contractual obligations.
     
  • Travelers looking to resume ongoing employment in the US, provided it’s in the same job position, with the same employer and under the same US visa classification. This exemption applies to ensure that US companies are not forced to replace employees, causing financial hardship.
     
  • Traveling to the US as a technical expert or specialist and meeting a critical infrastructure need. To be eligible for the exemption, L1B visa applicants must meet the following three criteria:

 

  1. Job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company.
  2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need.
  3. Has spent several years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

US H4 visa, L2 visa, and J2 visa applicants

  • Those accompanying or following the primary visa applicant to the US as a spouse or parent are eligible for exemptions under national interest rules. National interest exceptions are not required if the primary visa applicant is not subject to US entry restrictions or already has a visa that was valid prior to Trump’s proclamation coming into force on June 24.

Scheduling a US visa application appointment

US visa applicants who think they qualify for an exemption to Trump’s work visa ban under national interest rules, can request a visa application appointment at their nearest Embassy or Consulate. During the interview, a decision will be made as to whether an applicant meets exemption criteria.

Immigrant visa applicants who have not been issued with a visa as of April 23 are subject to the restrictions of Trump’s proclamation, unless they can prove they are eligible for an exemption. All valid US visas will not be rescinded under the proclamation.

Workpermit.com can help with US employment-based visas

If you would like to apply for a US work visa – including L1 visasE2 visasO1 visas and H1B visas - Workpermit.com can help. 

Workpermit.com is a specialist visa services firm with over thirty years of experience dealing with visa applications. We can help with a wide range of visa applications to your country of choice. Contact us for further details.  You can also telephone 0344 991 9222.