Client Alert: State Department Issues Guidance on Executive Orders

Klasko Immigration Law Partners, LLP
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Updated guidance from the U.S. State Department was issued on August 12, more than a month and a half after the June 22 Presidential Proclamation. The June 22 proclamation extended the existing visa ban of H, L, and certain J nonimmigrants, which prompted many impacted businesses and individuals to sue the administration, challenging the reasoning that the visa ban was to protect the economic recovery and jobs for American workers.

The new State Department guidance provided a broader list of which H, L, and J visa applicants might be allowed entry to the U.S. due to the national interest of the country:

H-1B, L-1A, and L-1B employees:

In addition to the existing criteria for these visas, the employee could be:

  • Public health or healthcare professional or researcher alleviating the effects of the COVID-19 pandemic;
  • Public health or healthcare professional or researcher conducting ongoing medical research with a substantial public health benefit (i.s. cancer or communicable disease research);
  • Professionals working performing research, providing IT support/services, or other similar projects essential to a U.S. government agency;
  • Professionals being paid a wage rate that exceeds the prevailing wage rate for their occupation by at least 15 percent, which suggests that the employee fills an important business need where an American worker is not available;
  • Professionals who exceed the minimum qualification for H-1B visas because they possess a master’s or doctoral level degree;
  • Employees resuming ongoing employment in the United States in the same position with the same employer and visa classification; and
  • Technical specialists, senior-level managers (for L-1s), and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.

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 criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

J-1 employees

  • Au pairs caring for a minor with special needs;
  • Au pairs caring for a minor whose parents caring for COVID-19 patients or conducting medical research to combat COVID-19;
  • Workers in an exchange program that is in the U.S. national interest, if the agreement was in effect before the June 22 Presidential Proclamation;
  • Interns, trainees, and exchange visitors hosted by a U.S. government agency and supporting the economic recovery of the United States;
  • Specialized Teachers and exchange visitors teaching full-time in an accredited educational institution.

H-4, L-2, and J-2 applicants

  • National interest exceptions are available to join a principal applicant who is a spouse or parent.

Some of the new guidance appears to violate the Immigration and Nationality Act by attempting to change regulations without a notice and comment period, such as the additional education requirement for an H-1B applicant and the job creation requirement of an L-1A applicant. This Forbes article discusses the new guidance and how various lawsuits are related to the issuance of this new guidance.

The guidance, while still problematic, is a small improvement on the initial proclamation and provides a broader set of exceptions. Even under the previous tighter restrictions, Klasko Immigration Law Partners was able to acquire national interest waivers for our clients’ critical workers, and we anticipate these new policies will help employers get more critical workers back to the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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