In the Spring and Summer of 2020, President Trump issued a series Executive Proclamations restricting the entry of certain individuals to the United States. This first set of proclamations, issued between February and March of 2020 banned the entry of anyone who had been in a country with a high rate of COVID-19 cases within the 14 days preceding their entry to the U.S. These countries include, China, Iran, the Schengen Region of Europe, The United Kingdom, The Republic of Ireland, and Brazil. These Proclamations are generally referred to as the “Public Health Travel Ban”.
Further, on April 22, 2020, President Trump issued a Proclamation preventing certain immigrant visa applicants from obtaining immigrant visas to enter the United States and which called for the review of nonimmigrant programs with a view toward enacting additional restrictions. Subsequently, on June 22, 2020, the President expanded the scope of this Proclamation to certain nonimmigrant visa categories, effectively banning the entry of individuals on H-1B, H-2B, J-1, and L-1 visas, as well as their dependent family members, from entering the U.S. until December 31, 2020. The purported premise for these travel bans was to protect the U.S. labor market during a period of severe economic contraction following the COVID-19 outbreak. The travel ban is generally referred to as the “Labor Market Travel Ban.”
The text of both travel bans listed numerous individuals who were exempted from the temporary travel restrictions, as outlined below:
Exemptions to the Public Health Travel Ban
Listed Exemptions
U.S. Citizens
Current lawful permanent residents;
Spouses or children of a United States citizen;
Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents (so long as unmarried and under 21)
Siblings of U.S. Citizens and Lawful Permanent Residents (so long as unmarried and under 21)
Children, Foster Children, and Wards of a U.S. citizen or Lawful Permanent Residents
Individuals traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
Individual traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crew member or any alien otherwise traveling to the United States as air or sea crew;
Individuals traveling on certain diplomatic visas (including A, G, and NATO)
Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus
Individuals whose entry would further important United States law enforcement objectives,
Individuals whose entry would be in the “national interest”;
Members of the U.S. Armed Forces along with their spouses and children.
Added Exemptions
In addition, various government agencies have subsequently clarified that the following exemptions also exist under the Public Health Travel Ban:
F and M students - Students who are currently in the Schengen region of Europe, the U.K. and the Republic of Ireland and already have a valid F-1 or M-1 visa stamp are exempt from the Public Health Travel Ban. The exception does not apply to students in Brazil, Iran, and China, which are also subject to similar travel bans.
Certain Age Outs - Applicants who are subject to aging out of their current immigrant visa classification for the expiration of the relevant Proclamations or within two (2) weeks thereafter.
Exemptions to the Labor Market Travel Ban
Listed Exemptions
Immigrants:
Current lawful permanent residents;
Immigrant visa applicants who are physicians, nurses, healthcare professionals, engaged in research focused on combating COVID-19, or who are to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 along with their dependent family members;
Immigrant visa applicants seeking admission as spouses and children of U.S. citizens (including certain adoptees);
Members of the Armed Forces and their dependent family;
Those applying for immigrant visas based on the EB-5 immigrant investor program;
Applicants whose admission would further certain law enforcement objectives;
Any individual seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification;
Any individual whose entry would be in the “national interest”;
Nonimmigrants:
H, L, and J visa holders (and their dependents) who were in the U.S. on the date the Proclamation took effect;
Individuals in possession of a valid H, L, or J visa stamp at the time the proclamation took effect (they may continue to use such visas for entry to the U.S.)
Lawful permanent resident of the United States;
Spouses or children of a United States citizen;
Individuals seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
Any individual whose entry would be in the “national interest”;
Added Exemptions
In addition, various government agencies have subsequently clarified that the following exemptions also exist under the Labor Market Travel Ban:
Canadians - Because Canadian nationals are generally exempt from obtaining a visa stamp to enter the U.S. in any of the impacted visa categories, they are not impacted by the proclamation (but are subject to the border restrictions/rule in place between the U.S. and Canada).
Travel for Critical Foreign Policy Objectives/At Invitation of U.S. Government - Certain H and J visa applicants who are traveling to work in support of critical U.S. foreign policy objectives (such as COVID-19 response) and/or traveling at the request of the U.S. government;
Spouses and Children of Principal Visa Holders Otherwise Exempt - Spouses and children of certain visa class holders, such as H, J, and L visa holders who are already exempted from or not subject to the nonimmigrant ban because, for example, the principal applicant is already in the United States.
Nonimmigrants Physically Present in the U.S. When Ban Took Effect - Clarifying statements made by the Department of State to the American Immigration Lawyers’ Association (AILA) during their annual conference indicated that individuals who were physically present in the U.S. when the ban took effect are completely exempt and should be able to apply for a new visa stamp in a banned category even while the ban is in effect.
National Interest Exception (NIE)
In the course of implementing these travel bans, the United States Department of State (DOS) and Customs and Border (CBP) protection have issued clarifying guidance on certain additional exceptions to them. Most notably the State Department provided specific examples of when certain individuals would be exempted from the ban if they could demonstrate that their entry to the U.S. was otherwise in the national interest. This exception has come to be known as the “National Interest Exception” or NIE.
National Interest Exceptions to the Public Health Travel Ban
In addition to the exceptions considered to be in the national interests outlined above, many U.S. Embassies and consulates also identified that certain Investors could apply for NIE exceptions. More specifically, Effective July 15, 2020, the Department of State announced that the investors may apply to be considered for the NIE if they can demonstrates that they are traveling to the U.S. “in connection with investment or trade in the U.S. economy that generates a substantial economic impact, including investors and treaty-traders and the senior-level employees who provide strategic direction or expertise essential to the success of the investment, and their dependents.”
While the wording of the exception is vague as to whether it could apply to other executives not traveling under the E visa category, at the time of publication, most Embassies and consulates appear to be applying this more restrictive reading and applying the exception only to E visa holders and E visa applicants. In addition, each consular post has established its own practices, policies, and procedures for adjudicating these NIE requests and even where someone would seemingly qualify based on the current guidance, the wording makes clear that being granted such an exemption would be purely discretionary.
National Interest Exceptions to the Labor Market Travel Ban
Note on August 12, 2020, The Department of State expanded the scope of national interest exceptions to the Labor Market Travel Ban and this post has been updated to include these new exceptions.
For H-1B visas
Public health or healthcare professional, or researcher traveling to the U.S. to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research).
Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
Travel by individuals seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification as evidenced on Part II, Question 2 of Form I-129, if “previously approved employment without change with the same employer” is selected.
Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S. as determined by a Consular Officer when at least two of the listed five indicators are present:
The petitioning employer has a continued need for the services or labor to be performed by the H-1B worker in the U.S. - This can be evidenced by a Labor Condition Application (LCA) certified by the DOL during or after July 2020, which DOS states are more likely to account for the effects of COVID-19 on the U.S. labor market and the Petitioner’s continuing need for the H-1B worker despite these effects. For LCAs approved before July 2020, this indicator can only be met if the Consular Officer can otherwise determine from the visa application a continuing need of of the beneficiary by the U.S. petitioning employer. the DOS notes that regardless of when the LCA was certified, applicants who can or are performing the essential functions of the position from outside the U.S. are not able to meet this indicator.
Beneficiaries providing significant and unique contributions to an employer meeting critical infrastructure needs - critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. In addition to working in one of these sectors the beneficiary’s position must be either (1) senior or involving unique and vital job duties/functions critical to the management of the business, or (2) the job duties must be specialized such that they are providing significant unique contributions to the company.
Wage rate paid exceeds prevailing wage by 15% - as demonstrated by the wage listed on the LCA
H-1B applicant possesses “unusual expertise” - as demonstrated by their education, training, and/or experience (e.g., a doctorate and many years of work experience).
Visa denial would cause financial hardship to U.S. employer - this is to be assessed based on the information in the visa application and includes the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.
For H-2B visas
Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations.
Travel necessary to facilitate the immediate and continued economic recovery of the United States (e.g. those working in forestry and conservation, non-farm animal caretakers, etc). Consular officers may determine that an H-2B applicant falls into this category when at least two of the listed three indicators are present:
The applicant was previously employed and trained by the petitioning U.S. employer - as evidenced by two or more H-2B (named or unnnamed) petitions.
The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker - similar to the H-1B, TLCs certified during or after July 2020 are more likely to demonstrates this and where the TLC is certified before this date the consular officer must be able to determine the continuing need by the U.S. employer
Visa denial would cause financial hardship to U.S. employer - this is to be assessed based on the information in the visa application and includes the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.
For J-1 visas
Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language).
Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
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 United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with "G-3" on Form DS-2019).
Specialized Teachers in Accredited Educational Institutions with a program number beginning with "G-5" on Form DS-2019:
Critical foreign policy objectives: This only includes programs where an exchange visitor is participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.
For L-1A visas
Travel as a public health or healthcare professional, or researcher 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.
Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction or IT infrastructure.
Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
Travel by a senior-level executive or manager filing a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
Will be a senior-level executive or manager;
Has spent multiple years with the company overseas, indicating substantial knowledge and expertise within the organization
Will fill a critical business need for a company meeting a critical infrastructure need.
For L-1B visas
Travel as a public health or healthcare professional, or researcher 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.
Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction or IT infrastructure.
Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
Travel as a technical expert or specialist meeting a critical infrastructure need as demonstrated by meeting all of the following three indicators:
The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization.
H-4, L-2, and J-2 visas exceptions
National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a national interest exception.
Where NIEs are granted to an individual, they are typically valid for 30 days and for a single entry to the U.S.
Given the extremely fluid situation, guidance is changing frequently and D&S recommends consulting with immigration counsel in order to assess eligibility for an exemption or exception to the travel bans.