Providing Developments & Insight on Trending Topics in Employment Law

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Providing Developments &amp; Insight on Trending Topics in Employment Law

<img class="alignright wp-image-5205" src="https://employmentlawspotlight.bakerhostetlerblogs.com/wp-content/uploads/sites/18/2020/08/International-Signs_1200x630_72dpi.jpg" alt="" width="438" height="230" />On June 22, President Trump took aggressive action impacting a wide group of temporary foreign national workers. In <a href="https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/">Presidential Proclamation 10052</a>, President Trump suspended the entry of certain temporary workers who are outside the United States and not in possession of a valid visa from seeking admission to the United States through Dec. 31. <a href="https://www.bakerlaw.com/alerts/another-brick-in-the-invisible-wall-president-trumps-covid-19-immigration-restrictions">As we wrote previously,</a> the June 22 proclamation applies to H-1B (professionals), H-2B (seasonal or peak-load workers), L (intracompany transferees) and J-1 (cultural exchange visitors) visas. It does not impact other work visas, which include the E, H-1B1, H-3, O, P and TN categories, but it does apply to family members of affected workers. The administration claims this action will protect more <a href="https://www.bakerlaw.com/podcasts/changes-to-business-immigration-during-covid-19-what-employers-need-to-know">than 500,000 jobs for U.S. workers.</a>

On June 29, the administration amended the June 22 proclamation to close a perceived loophole that would have allowed individuals with any type of valid visa (such as a visitor visa) to secure and use a new H-1B, H-2B, L-1 or J-1 visa (see <a href="https://www.whitehouse.gov/presidential-actions/proclamation-amendment-proclamation-10052/">here</a>). The proclamation now exempts only those H-1B, H-2B, L-1 or J-1 visa holders who possessed a valid visa in the same category as of the effective date of the proclamation.

On Aug. 12, the U.S. Department of State released guidance on <a href="https://travel.state.gov/content/travel/en/News/visas-news/exceptions-to-p-p-10014-10052-suspending-entry-of-immigrants-non-immigrants-presenting-risk-to-us-labor-market-during-economic-recovery.html">national interest exceptions (NIEs) to the June 22 proclamation</a>. As they pertain specifically to H-1B and L-1 visas, the following exceptions may be applicable.

H-1B Applicants
<ul>
 	<li>Public health or healthcare professionals, or researchers seeking to travel to alleviate the effects of the COVID-19 pandemic or to conduct ongoing medical research in an area with a substantial public health beneﬁt. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.</li>
 	<li>Applicants seeking to travel by request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.</li>
 	<li>Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classiﬁcation.</li>
 	<li>Technical specialists, senior-level managers and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States. An H-1B applicant falls into this category when at least two of the following ﬁve factors are met:</li>
</ul>
<ol>
 	<li>The petitioning employer has a continued need for the services or labor of the H-1B worker in the United States. However:</li>
</ol>
<ul>
 	<li>This factor is met only for cases with an ETA 9035 Labor Condition Application approved during or after July 2020.</li>
 	<li>For LCAs approved before July 2020, this factor is met only if the petitioner can establish a continued need for H-1B workers.</li>
 	<li>Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position remotely from outside the United States, then this factor cannot be met.</li>
</ul>
<ol start="2">
 	<li>The applicant is seeking employment in a critical infrastructure sector (e.g., chemical, communications, dams, defense industrial base, emergency services, energy, ﬁnancial services, food and agriculture, government facilities, healthcare and public health, IT, nuclear reactors, transportation, and water systems) and must hold one of the two types of positions below:</li>
</ol>
<ul>
 	<li>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</li>
 	<li>The applicant’s proposed job duties and specialized qualiﬁcations indicate the individual will provide signiﬁcant and unique contributions to the petitioning company.</li>
</ul>
<ol start="3">
 	<li>The wage paid to the H-1B applicant exceeds the prevailing wage rate by at least 15 percent.</li>
 	<li>The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.</li>
 	<li>Denial of the visa pursuant to P.P. 10052 will cause ﬁnancial hardship to the U.S. employer.</li>
</ol>
L-1 Applicants 
<ul>
 	<li>Public health or healthcare professionals, or researchers seeking to travel to alleviate the effects of the COVID-19 pandemic or to conduct ongoing medical research in an area with a substantial public health beneﬁt. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.</li>
 	<li>Applicants seeking to travel by request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.</li>
 	<li>Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classiﬁcation.</li>
 	<li>In addition to the above, L-1A visa applicants will be exempted if the L-1A applicant is not seeking to establish a new office in the United States and meets at least two of the following three factors:</li>
</ul>
<ol>
 	<li>Is a senior-level executive or manager.</li>
 	<li>Has spent multiple years with the foreign company, indicating a substantial knowledge and expertise within the organization that can be replicated by a new employee within the company only following extensive training that would cause the employer ﬁnancial hardship.</li>
 	<li>Will ﬁll a critical business need for a company meeting a critical infrastructure need.</li>
</ol>
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 factors described above are met and the new ofﬁce will employ, directly or indirectly, ﬁve or more U.S. workers.
<ul>
 	<li>In addition to the above, L-1B visa applicants will be exempted if all three of the following indicators are present:</li>
</ul>
<ol>
 	<li>The applicant’s proposed job duties and specialized knowledge indicate the individual will provide signiﬁcant and unique contributions to the petitioning company.</li>
 	<li>The applicant’s specialized knowledge is speciﬁcally related to a critical infrastructure need.</li>
 	<li>The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can be replicated by a new employee within the company only following extensive training that would cause the employer ﬁnancial hardship.</li>
</ol>
Similar exceptions apply for H-2B and J-1 visa applicants. Generally, family dependents of H-1B, L-1, H-2B and J-1 applicants will be considered exempt with the principal applicant.

To the extent exceptions apply, eligibility will be determined by the Department of State during consular visa processing abroad. Applicants who qualify for an NIE exception should request an emergency appointment and provide a detailed explanation of the qualified exemption.

Summary of National Interest Exceptions to Presidential Proclamation 10052 for H-1B and L-1 Visa Applicants