Exceptions to travel restrictions: getting employees back to the U.S.

Since President Trump declared that the COVID-19 outbreak constituted a national emergency in March, restricting immigration has been one of the administration’s preferred tools to address the outbreak.  One of the first steps President Trump took was to issue a series of Proclamations suspending entry of most foreign nationals traveling from certain countries with a high number of confirmed COVID-19 cases, including China, Iran, the entire Schengen Area, U.K., Ireland, and, later, Brazil.

In June, President Trump issued another Proclamation restricting travel, this time for economic reasons.  In support of the idea that certain foreign workers and their dependents posed a risk to the recovering U.S. labor market, Presidential Proclamation 10052 suspended the entry of a wide range of employees seeking to enter the U.S. Those with H-1B, H-2B, L-1, or J-1 status who were outside of the U.S. on June 24, 2020 and did not have a valid nonimmigrant visa were barred from re-entry, along with their families.

These two main restrictions laid out different criteria for denying entry to the U.S., although the two may overlap—for example, for an individual currently located in Italy who needs a new H-1B visa to travel.

Both proclamations created an incredibly restrictive environment for human resource leaders and companies tasked with managing foreign nationals within the workforce.

However, an exception was provided that allowed travel by individuals whose entry would be “in the national interest.”  While that was too vague for companies to rely on, recent guidance issued by the Department of State has clarified who may qualify for these “national interest exceptions.”

Although an approval is not guaranteed, our attorneys have had recent success pursuing these exceptions. Individuals with a strong argument that their travel falls within one of the enumerated categories for an exception have a good chance at approval: a request is well worth the time and effort involved.

Who is exempt from the proclamations?

Let’s start by outlining who is exempt from the bans—meaning that the restrictions, on their face, do not apply.  U.S. citizens, lawful permanent residents, and spouses, parents, siblings, or children of U.S. citizens or permanent residents are not subject to the restrictions, and do not need to go through the national interest exception process to travel to the U.S.  Further, for the labor market proclamation, individuals who were in the U.S. on the effective date of the proclamation (June 24), or who have a valid H-1B, H-2B, L-1, or J-1 visa or travel document are exempt from the travel ban.

Who may qualify for a national interest exception?

The Department of State (DOS) recently issued detailed guidance outlining categories of individuals whose travel to the U.S. would be in the national interest.  The guidance was issued particularly for the labor market proclamation, but is also helpful to show who may qualify for an exception from the geographic proclamation as well.  The following travelers may qualify for an exception:

  • H-1B, L-1A, or L-1B applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.
  • H-1B applicants who are technical specialists, senior level managers, or other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S. To fall into this category, at least two out of a list of five indicators must be present, including:
  • The employer has a continued need for the services of the H-1B applicant as demonstrated by an approved Labor Condition Application (LCA) during or after July 2020;
  • The applicant is a senior-level employee who will provide significant contributions to an employer meeting a critical infrastructure need, such as communications, emergency services, energy, financial services, food and agriculture, healthcare, and information technology;
  • The wage rate paid to the H-1B applicant exceeds the prevailing wage rate by at least 15 percent;
  • The H-1B applicant has unusual expertise in the specialty occupation as demonstrated by the applicant’s education, training, and/or experience; or
  • Denial of the visa will cause financial hardship to the U.S. employer.
  • Certain L-1A senior level executives or managers filling a critical business need of an employer meeting a critical infrastructure need.
  • Certain L-1B applicants who are technical experts or specialists meeting a critical infrastructure need.

What about dependents?

The DOS guidance indicates that all H-4, L-2, and J-2 applicants who will accompany or follow to join a principal applicant will be granted a national interest exception or are otherwise exempt from the ban.

What is the process for applying for a national interest exception?

There are two avenues to secure an exception: either through U.S. Customs and Border Protection (CBP) or a U.S. consulate or embassy.  Individuals in the Schengen area, the U.K., or Ireland who have valid visas, but whose travel is restricted by the geographic proclamation may be able to apply directly with CBP.  If CBP approves the request, the approval will be communicated to the airline, and the individual will be allowed to board the flight to the U.S.  Importantly, this approval is only valid for one entry—if the individual has to depart the U.S. again at later date, they would need to seek a new exception for all subsequent travel to the U.S.

Individuals subject to the labor market proclamation who do not yet have a valid visa will need to apply directly with the U.S. consulate or embassy.  These applications are made even more difficult by the fact that many consular posts across the world still have limited operations and may remain closed for routine visa processing.  If the national interest exception is approved by the consulate, the individual should receive the visa in their passport with a notation that the exception was approved.  The visa may also be valid for only 30 days from approval and for one entry to the U.S.

If you are a foreign national, or employ a foreign national, who may be eligible for one of these national interest exceptions, we encourage you to contact a Chin & Curtis attorney to discuss your individual case and any questions you may have.

About the Author: Phil Curtis has practiced immigration law for more than 30 years and is a founder of Chin & Curtis, LLP.  He has guided Chin & Curtis for the last seven years and now serves as Co- Managing Partner.  With more than 40 professionals dedicated to serving the immigration needs of the business community, Chin & Curtis is New England’s largest independent immigration law firm.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.