National Interest Exceptions to Presidential Proclamations Suspending Certain Immigrants and Nonimmigrants

August 12, 2020

By Immigration Group

On June 22, President Trump signed Presidential Proclamation 10052, which suspended the entry of certain immigrant visa applicants through December 31, 2020, including applicants for H-1B, H-2B and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2 or J-2 visas.

The government has now outlined a number of exemptions for travelers whose entry is in the U.S. national interest, to include:

H-1B Applicants

  • Healthcare professionals, public health workers or researchers working to alleviate the effects of the COVID-19 pandemic or other areas with a substantial public health benefit (e.g. cancer or communicable disease research);
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives;
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification; or
  • 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.

H-2B Applicants

  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations; or
  • Travel necessary to facilitate the immediate and continued economic recovery of the United States.

 J-1 Applicants

  • Travel to provide care for a minor U.S. citizen, LPR or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education or sign language);
  • Travel by an au pair that prevents a U.S. citizen, lawful permanent resident or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution;
  • Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19;
  • An exchange program conducted pursuant to an agreement between a foreign government and any federal, state or local government entity in the United States that is designed to promote U.S. national interests if the agreement was in effect prior to June 22, 2020;
  • Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019);
  • Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019; or
  • Programs where an exchange visitor participating in an exchange program fulfills critical and time sensitive foreign policy objectives.

L-1A Applicants

  • Public health or healthcare professionals, or researchers to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit;
  • Travel based on a request from a U.S. government agency to meet critical foreign policy objectives or treaty obligations;
  • Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification;
  • Senior level executives or managers filling critical business needs of an employer meeting a critical infrastructure need. L-1A applicants fall into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
    1. Will be a senior-level executive or manager;
    2. Has spent multiple 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; or
    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 criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B Applicants

  • Public health or healthcare professionals or researchers to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit;
  • Travel based on a request from a U.S. government agency to meet critical foreign policy objectives or treaty obligations;
  • Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification;
  • Technical experts or specialists meeting a critical infrastructure need, 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; AND
    3. The applicant has spent multiple 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.