By Advocate Shira Klein, Senior Attorney, U.S. Department
On April 22, 2020, President Trump issued an Executive Order restricting entry to the U.S. of certain immigrants, with some exceptions. He made the decision on the basis that they presented a risk to the U.S. labor market given the negative effects of the COVID-19 pandemic on the U.S. economy.
The Presidential Proclamation took effect on June 24, 2020 and suspended the issuance of H-1B, H-2B, L-1, and J-1 visas to certain foreign nationals through December 31, 2020.
While there are several exceptions which allow foreign nationals to be issued a visa one of the main exceptions applies to those whose entry would be deemed “in the national interest.”
On August 12, 2020, the Department of State provided guidance as to what qualifies for a National Interest Exception where the work or activity is related to:
- Healthcare or research designed to alleviate the effects of the COVID-19 pandemic (H-1B, L-1A, L-1B);
- A request by a U.S. government agency or entity to meet critical U.S. foreign policy objectives or satisfy treaty or contractual obligations (H-1B, H-2B, L-1A, L-1B) ;
- Facilitating the immediate and continued economic recovery in the U.S., if two of the three criteria are met: i) the foreign national was previously employed or trained by the petitioning U.S. employer; ii) the foreign national is traveling to the U.S. based on a temporary labor certification (TLC); iii) the denial of the visa will cause significant financial hardship to the employer (H-2B );
- Resuming ongoing employment in the U.S. in the same position with the same employer in the same visa classification, and forcing employers to replace such workers would cause undue hardship (H-1B, L-1A, L-1B );
- Technical or managerial work and will help facilitate the economic recovery of the U.S., if two of the five following criteria are met: i) the petitioner shows a continued need for the services or labor and/or the case contains Labor Condition Application (LCA) approved on or after July 2020; ii) the work or activity is significant and contributes to an employer meeting critical infrastructure needs; iii) the foreign national’s education, training or experience demonstrates unusual expertise; iv) the wage rate paid to the H-1B worker exceeds the prevailing wage rate by at least 15%; or v) the denial of the visa will cause significant financial hardship to the employer (H-1B );
- Caring for a minor U.S. citizen, Green Card holder, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (J-1 );
- Preventing a U.S. citizen, Green Card holder, or other nonimmigrant in lawful status from becoming a public charge in the U.S. (J-1);
- Providing childcare services for a child whose parents are involved with providing medical care to others to combat COVID-19 and/or engaged in COVID-19 research (J-1 );
- An exchange program conducted pursuant to an MOU, Statement of Intent or other valid agreement or arrangement between a foreign government and any federal, state or local government entity in the U.S. that is designed to promote U.S. national interests, if agreement with the foreign government was in effect prior to June 24, 2020 (J-1);
- Interns or trainees on U.S. government agency sponsored programs, or specialized teachers in accredited educational institutions with a program number beginning with G-5 on Form DS 2019, or involves critical foreign policy objectives (J-1(;
- A foreign national who is a senior level executive or manager filing a critical business need or critical infrastructure need of the employer, if two of the following three criteria are present and the foreign national is not seeking to establish a new office: i) the foreign national will be a senior level executive or manager; ii) the foreign national has spent multiple years with the company overseas, and has 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 financial hardship to the employer; or iii) the foreign national will fill a critical infrastructure need of the employer (L-1A(;
- A technical expert or specialist meeting a critical infrastructure need, if the following three criteria are met: i) the foreign national’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company; ii) the foreign national’s specialized knowledge is specifically related to a critical infrastructure need; and iii) the foreign national 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 (L-1B ).
The term “National Interest” is commonly used in the context of requests for permanent residency for advanced degree/exceptional ability workers in the second category of EB2 (green card) called “National Interest Waiver”. A National Interest Waiver allows the foreign national to skip certain stages in the green card process. National interest waivers are granted if the applicant satisfies the following three conditions:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well-positioned to advance the proposed endeavor;
- On balance, it would be beneficial to the US to waive the job offer and labor certification requirements.
The definition of “national interest” waiver leaves broad room for discretion. It includes a wide range of national interests such as environmental interests, welfare, education, art and music interests, and the more common healthcare, research, and governmental interests.
In contrast, the National Interest Exception has a more limited statutory definition. It is restricted to interests relating to: health care, child care, governmental contractual obligations, urgent economic recovery, or critical business needs, consequently forming a relatively narrow path to meet the definition.
In my opinion the National Interest Exception should have been granted a general definition allowing the consular officers to use their discretion on a case to case basis, similarly to the National Interest waiver. The restrictive nature of the exceptions makes it very difficult to circumvent, but then wasn’t that the intention?
