Getting Around the Suspension of H-1b and L-1 Visas: National Interest Exceptions

Many foreign nationals know that on June 22nd, Presidential Proclamation 10052 was issued. The Proclamation suspends entry into the United States of applicants for certain visas, including (among others) H-1B, H-2B, L-1, and L-2 visas. It does not apply to applicants who were in the US on its effective date (June 24th) and who already had a valid visa in one of the classifications mentioned above. It is nonetheless a sweeping ban applicable to hundreds of thousands of nonimmigrants, which has resulted in multiple lawsuits being filed against the federal government to enjoin it. 

In response to these lawsuits, on August 12th the government issued new guidance that includes expanded "national interest" exceptions to the Proclamation. This new guidance will presumably help many professionals and companies because it includes exceptions such as the following:

1. The applicant is seeking to resume ongoing employment in the US in the same position with the same employer and visa classification

2. The applicant is a technical specialist, senior level manager, or other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the US

3.  The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15%

4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed

5. 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

6.  Denial of the visa pursuant to the Proclamation would cause financial hardship to the US employer

However, in practice it will be difficult for a foreign national to benefit from a national interest exception. In order to do so, they must be able to get over the hurdles of (1) successfully scheduling an emergency appointment at the applicable US consulate abroad during a pandemic that has resulted in extremely limited visa services, and (2) successfully arguing that they qualify for an exception in the face of consular officers who have unchecked discretion to approve or deny these applications. Furthermore, the new guidance in conjunction with the Proclamation itself constitute an attempt by the executive branch to circumvent the legislative procedure and create new statutory requirements for H-1b and L-1 visas. These issues will result in lawsuits continuing to move forward against the federal government, which may result in an injunction on the Proclamation itself. Stay tuned . . . 

. . . and in the meantime, contact us for help at theteam@huwelaw.com or 415-496-9040.