National Interest Exceptions to Presidential Proclamation 10052 (U.S. Travel Ban)

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On the 12th of August, 2020, the U.S. State Department declared National Interest exceptions to Presidential Proclamation 10052, (the U.S. Travel Ban), due to COVID-19. As a result, people can travel as long as it’s determined to be in the National Interest of the country.

What Is President Proclamation (P.P.) 10052?

President Proclamation (P.P.) 10052 was issued by President Trump on the 22 nd of June 2020. The proclamation suspended foreign nationals from entering the U.S. due to the risk they pose to the U.S. labor market as it recovers on an economic front due to the virus.

P.P. 10052 is in effect till the 31st of December, 2020, and it applies to applicants for L-1, H-1B, J-1, and H-2B nonimmigrant visas. The new announcement from the U.S. State Department mentions the criteria for National Interest Exception eligibility for nonimmigrants.

Exceptions for H-1B Applicants

All H-1B applicants can apply for National Interest Exceptions under the following circumstances (note that this is not an exhaustive list of criteria):

· Travel as a researcher or a healthcare professional to help deal with the effects of Coronavirus.

· Travel to satisfy contractual or treaty obligations to meet objectives regarding U.S. foreign policy.

· Travel to resume existing employment in the U.S. with the same visa classification and employer as before.

· Travel by technical specialists, senior level managers and those whose travel is necessary . . . to help with the ongoing U.S. economic recovery. At least two of the below must be present:

o The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.

o 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. Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:

a) 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

b) The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

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

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

o Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.

Exceptions for J-1 Applicants

All J-1 applicants can apply for National Interest Exceptions under the following circumstances (note that this is not an exhaustive list of criteria):

· Travel to care for a child with particular needs. The child can be a U.S. citizen, nonimmigrant, or LPR.

· Travel by Trainees or Interns of programs sponsored by any U.S. government agency.

· Childcare services provided for a child whose parents are involved with individuals who have contracted COVID-19 or medical research at United States facilities to combat COVID-19.

· Interns and Trainees on U.S. government agency-sponsored programs.

· Specialized Teachers in Accredited Educational Institutions.

· Exchange visitors participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.

Exceptions for H-2B Applicants

All H-2B applicants can apply for National Interest Exceptions under the following circumstances:

· Travel to satisfy contractual or treaty obligations to meet objectives regarding U.S. foreign policy.

· Travel to help facilitate the ongoing U.S. economic recovery.

o The applicant must have previously worked for the petitioning U.S. employer under two or more H-2B (named or unnamed) petitions.

o The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker.

o Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.

Exceptions for L-1A Applicants

All L-1A is applicants can apply for National Interest Exceptions under the following circumstances (note that this not an exhaustive list of criteria):

· Travel by a senior manager or executive who must fulfil a vital business need for a particular employer that must meet a crucial infrastructure need.

· Travel as a researcher or a healthcare professional to help deal with the effects of Coronavirus.

· Travel to satisfy contractual or treaty obligations to meet objectives regarding U.S. foreign policy.

· Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need.

o Will be a senior-level executive or manager;

o 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

o Will fill a critical business need for a company meeting a critical infrastructure need.

Exceptions for L-1B Applicants

All L-1B is applicants can apply for National Interest Exceptions under the following circumstances (note that this not an exhaustive list of criteria):

· Travel as a public health or healthcare professional, or researcher 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 or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.

· Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.

· Travel as a technical expert or specialist meeting a critical infrastructure need. The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:

o The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;

o The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND

o 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.

Generally, if subject to the proclamations and if an individual has a valid visa stamp or ESTA authorization, such exceptions may be applied for by email. When not applicable, an emergency appointment may be requested at the U.S. consular post for consideration. U.S. Customs and Border Protection may also adjudicate such exception requests in certain circumstances.

How Can You Apply for a National Interest Exception?

For those of you who believe that you can qualify for an exception, get in touch with us at NPZ Law Group as soon as possible. We’ll go over your case, analyze the details, and guide you through every step of the process.

If you wish to get in touch with our New Jersey office for National Interest exceptions to President Proclamation 10052 , give us a ring at 201-670-0006 ext. 104.

Reprinted with permission.


About The Author

Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C. At NPZ Law Group, we are business immigration lawyers who understand that success in today's global marketplace requires a skilled and mobile workforce. We provide our business clients with the legal assistance they require in immigration matters to help them meet their business goals while complying with applicable immigration laws and regulations.

If you should have any questions or need more information about the ways in which the U.S. Immigration and Nationality Laws may impact you, your family, your friends or your colleagues, please contact the U.S. Immigration and Nationality Lawyers at the NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers by e-mailing us at info@visaserve.com or by calling us at 201-670-0006 (x107). You can also visit our Law Firm’s website at www.visaserve.com


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