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 In Employment Based

On Aug. 12, the U.S. Department of State released guidance on national interest exceptions (NIEs) to the June 22 proclamation. As they pertain specifically to H-1B and L-1 visas, the following exceptions may be applicable.

H-1B Applicants

  • Public health or healthcare professionals, or researchers seeking to travel to alleviate the effects of the COVID-19 pandemic or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
  • Applicants seeking to travel by request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
  • Technical specialists, senior-level managers and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States. An H-1B applicant falls into this category when at least two of the following five factors are met:
  1. The petitioning employer has a continued need for the services or labor of the H-1B worker in the United States. However:
  • This factor is met only for cases with an ETA 9035 Labor Condition Application approved during or after July 2020.
  • For LCAs approved before July 2020, this factor is met only if the petitioner can establish a continued need for H-1B workers.
  • Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position remotely from outside the United States, then this factor cannot be met.
  1. The applicant is seeking employment in a critical infrastructure sector (e.g., chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, IT, nuclear reactors, transportation, and water systems) and must hold one of the two types of positions below:
  • Senior-level placement within the petitioning organization, or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; or
  • The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
  1. The wage paid to the H-1B applicant exceeds the prevailing wage rate by at least 15 percent.
  2. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.
  3. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.

L-1 Applicants

  • Public health or healthcare professionals, or researchers seeking to travel to alleviate the effects of the COVID-19 pandemic or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
  • Applicants seeking to travel by request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
  • In addition to the above, L-1A visa applicants will be exempted if the L-1A applicant is not seeking to establish a new office in the United States and meets at least two of the following three factors:
  1. Is a senior-level executive or manager.
  2. Has spent multiple years with the foreign company, indicating a substantial knowledge and expertise within the organization that can be replicated by a new employee within the company only following extensive training that would cause the employer financial hardship.
  3. Will fill a critical business need for a company meeting a critical infrastructure need.

Note: L-1A applicants seeking to establish a new office in the United States likely do not fall into this category, unless two of the three factors described above are met and the new office will employ, directly or indirectly, five or more U.S. workers.

  • In addition to the above, L-1B visa applicants will be exempted if all three of the following indicators are present:
  1. The applicant’s proposed 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. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can be replicated by a new employee within the company only following extensive training that would cause the employer financial hardship.

Similar exceptions apply for H-2B and J-1 visa applicants. Generally, family dependents of H-1B, L-1, H-2B and J-1 applicants will be considered exempt with the principal applicant.

To the extent exceptions apply, eligibility will be determined by the Department of State during consular visa processing abroad. Applicants who qualify for an NIE exception should request an emergency appointment and provide a detailed explanation of the qualified exemption.

Immigration Office Solutions is not a law firm and is not a substitute for the advice of an attorney. Immigration Office Solutions is not affiliated with or endorsed by United States Citizenship and Immigration Services (USCIS) or any other government agency. Blank immigration forms with written instructions are available for free at the USCIS website. Attorney services are provided by independent attorneys and are subject to a separate Attorney Agreement.

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