Following the promulgation of Presidential Proclamations P.P. 10014 & P.P. 10052, economic immigration to the USA has been significantly restricted in order to prevent further negative impact on the U.S. labor market impact as a result of the COVID-19 pandemic. The Proclamations were initially in effect until December 31, 2020, but will now continue to remain in force until at least March 31, 2021. Additional information regarding planned changes to the economic immigration policy to the USA can be found on federal government websites.
As a first step, as of January 20, 2021, the government has imposed a 60-day suspension (until March 21, 2021) on the regulations implemented on January 8, 2021 by the Department of Homeland Security, providing for selection of H-1B visas instead of through the lottery system, as well as the regulations introduced on January 14, 2021 by the U.S. Department of Labor, which significantly increased the prevailing wage requirements for foreign workers. It is yet to be determined whether the previous regulations for H, J and L visas will be reinstated after the suspension expires.
Proclamations P.P. 10014 & P.P. 10052 are the subject of an action brought by the U.S. Chamber of Commerce and the National Association of Manufacturers against the federal government. On October 1, 2020, the Federal Court for the Northern District of California issued a temporary injunction preventing the government from enforcing the proclamations which prohibit entry into the USA of certain types of H-1B, H-1B, L-1, and J-1 visa holders. This decision was then appealed by the Department of Homeland Security. Oral arguments were presented on January 19, 2021 before the Federal Court of Appeals for the Ninth Circuit. We can expect a decision in the near future. Importantly, a decision in favour of upholding the injunction would apply only to the parties to the proceedings, although it may open the way for a general lifting of the proclamation.
The circumstances giving rise to the National Interest Exception (NIE) for H and L visa holders largely boil down to counteracting the social and economic impacts of the pandemic. Therefore, in first order, individuals working in the health care and medical fields and/or those conducting COVID-19 research were excluded from the proclamations’ application. Furthermore, the proclamations do not apply to those travellers to the USA who perform critical tasks for government agencies. Other exemptions are also provided for certain private sector employees.
CONTINUED EMPLOYMENT FOR H-1A, L1-A AND L-1B VISA HOLDERS
One of the main exceptions to the proclamations is for individuals already holding valid H-1A, L-1A and L-1B visas who travel back to the USA to engage in ongoing employment for a U.S. employer. The reasoning is that hiring and training a new employee during the COVID-19 pandemic may lead to excessive costs and difficulties for the employer. Therefore, in cases of continuous employment, work visa holders may apply for a National Interest Exception (NIE) in order to return to the USA. Importantly, employers of individuals with valid H or L visas may apply for visa extensions for their employees. The application must be submitted no earlier than six months prior to the expiration date of the visa.
EXCEPTIONS FOR H-1A, H-1B, L-1A, AND L-1B VISA APPLICANTS
Employers may apply for H-1A, L-1A, and L-1B visas for their employees if they can prove that the employee is essential to the operation of the business and that the employee’s contribution to their business will be unique and substantial. Applying for H-1A and L-1A visas is only available for employers who perform services critical to the operation of the national infrastructure including, but not limited to, communications, energy, finance, food, agriculture, health care, and IT. On the other hand, the need to hire a specialist for a key position in a company satisfies the requirement for applying for an L-1B visa. Holding a senior level position or having specialized knowledge and/or experience may be a necessary prerequisite in some situations. For some visa categories, there are also minimum salary requirements for the foreign employee.
J-1 VISA APPLICANTS
Individuals who travel to the USA in order to take care of a minor U.S. citizen, permanent resident, or lawful non-immigrant visa holder, can apply for a J-1 visa. A J-1 visa may be also granted to individuals who care for a person who would otherwise become the state’s responsibility. Exemptions are also provided for participants of certain international exchange programs as well as for teachers of accredited educational institutions.
Spouses of H, L, or J visa holders who are staying in the USA, or who have yet to be granted a visa and National Interest Exception, may still apply for the appropriate visa category. A complete list of requirements for the National Interest Exception is available on the Department of State website: 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.
Jarosław Kurpiejewski
Attorney at Law licensed in Poland. Senior Associate in Ilasz & Associates Law Firm in New York. Specializes in private international law, civil litigation and immigration law.
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