NewsFlash! DOS Adds More Exceptions to Executive Order Banning Entry of Certain Nonimmigrant Workers

Today, the U.S. Department of State (DOS) updated the exceptions to the nonimmigrant workers who are prohibited from being admitted to the United States based on President Trump’s June 22, 2020, executive order. For example, the DOS now provides an exception for H1B, L1A, and L1B workers who are “…seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.” A brief summary of some of the other more noteworthy exemptions is listed below, for the benefit of our readers.

H1B Workers

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. Consular officers may determine that an H1B applicant falls into this category when at least two of the following five indicators are present:

1. The petitioning employer has a continued need for the services or labor to be performed by the H1B nonimmigrant in the United States. Labor Condition Applications (LCAs) approved during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business. For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer. Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.

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. Critical infrastructure sectors are 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.

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 pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.

L-1 Workers

Travel by a senior level executive, manager, technical expert, or specialist meeting a critical business need of an employer meeting a critical infrastructure need. 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.

Conclusion

Today’s update by the DOS should serve to greatly diminish the negative impact of the June 22nd executive order. Foreign nationals seeking to apply for a visa based on one of these exceptions may wish to consult with a knowledgeable attorney.

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