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National Interest Exceptions to Travel Ban Expended to H-1B and L-1 Employees

By August 17, 2020March 29th, 2021COVID-19
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In July 2020, the Department of State announced that certain business and student travelers may apply for a  National Interest Exception (“NIE”). The NIE allows such travelers to travel to the United States even with the travel bans remaining in effect. This exception has now been extended to H-1B and L-1 employees.

The H-1B visa is a nonimmigrant visa suitable for individuals who have a bachelor’s degree or the equivalent and a job offer from a sponsoring employer in a specialty occupation that is related to their field of study. To learn more about the H-1B visa and your eligibility, please click here.

A foreign national may seek an H-1B visa to resume ongoing employment in the United States in the same position with the same employer and visa classification.

Alternatively, an applicant for an H-1B may be eligible for an NIE if two of the following criteria are met:

  • The employer has a continued need for the services or labor to be performed by the H-1B applicant, provided that the employer had a labor condition application (LCA) approved by the U.S. Department of Labor during or after July 2020. If the LCA was obtained before July 2020, the visa application must demonstrate the employer’s continued need for the foreign national.  This criterion is not met if the visa applicant is currently performing or able to perform the essential functions of the H-1B position from outside the United States.
  • The employer is meeting a critical infrastructure need and the visa applicant’s job duties or position within the petitioning company will provide “significant and unique” contributions to the employer. Critical infrastructure sectors include financial services, information technology, communications, healthcare and public health, transportation, chemical, defense, water systems and nuclear reactors. Additionally, to fulfill this criterion, the applicant must: (a) hold a senior-level placement within the petitioning organization or have job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; or (b) demonstrate that the applicant’s proposed job duties and specialized qualifications indicate that the applicant will provide significant and unique contributions to the petitioning company.
  • The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15%.
  • The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed – e.g., the applicant holds a doctorate or professional degree related to the position or possesses many years of relevant work experience.
  • Denial of the visa under the nonimmigrant entry ban will cause financial hardship to the U.S. employer, e.g., inability to meet financial or contractual obligations, inability to continue the business or an impediment to the employer’s ability to return to its pre-COVID level of operations.

An L-1 visa is a good option for a foreign company that that seeks to send an employee to work at an existing U.S. company. An L visa is also a good option for a foreign company trying to send an employee to open a new office in the United States.  The employee must have a particular set of skills and either be a manager/executive or have particular specialized knowledge.   To learn more, please click here.

An L-1A visa applicant may be eligible for an NIE if he or she is seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.

Alternatively, an applicant for an L-1A visa (other than a new-office L-1A) may be eligible for an NIE if they are a senior-level executive or manager and meets two of the following criteria:

  • The applicant will be a senior-level executive or manager.
  • 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.
  • The applicant will fill a critical business need for the employer meeting a critical infrastructure need in a designated industry (described above).

The Department of State also continues to grant National Interest Exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.  Given the general travel ban is still in place, it is recommended that travelers contact airlines, airports, CBP, and other relevant agencies before traveling.

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