On June 22, 2020, President Donald Trump signed Presidential Proclamation (P.P.) 10052, which extends the previous proclamation P.P. 10014, suspending the entry to the United States of certain immigrant visa applicants and also foreign nationals who present a risk to the U.S. labor market during the economic recovery following COVID-19 outbreak. Specifically, the suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

• When Presidential Proclamations Do Not Apply

This proclamation does not apply to those who were present in the United States on the effective date of it, or who had a valid visa in the classifications mentioned above or who possessed another valid travel document. It is important to note however that both proclamations include some exceptions that will be described below.

The list below is a non-exclusive list of the travel types that may be considered to be in the national interest.

• How to Request an Interview

Consular posts worldwide have suspended their routine visa services. Until complete resumption of routine visa services, applicants who appear to be subject to Presidential Proclamations will not be given visa interviews unless they appear eligible for the national interest exception.

it is important to note that applicants who are subject to the Proclamations but who believe they may qualify for a national or other interest exception, should follow the instructions on the U.S. Embassy or Consulate’s official website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception. 

While a visa applicant subject to one or more Proclamations may qualify for an exception, the applicant must first be approved for an emergency appointment request and a final determination regarding visa eligibility will be made at the time of visa interview.  

Remember that U.S. Embassies and Consulates may only be able to offer limited visa services due to the COVID-19 pandemic. Travelers who are subject to a COVID-19 Proclamation but who do not require a visa, such as ESTA travelers, should also follow the guidance on the nearest Embassy or Consulate’s website for how to request consideration for a national interest exception for entry into the USA.

• Exceptions under P.P. 10052 for certain travel in the national interest by nonimmigrants may include the following:

H-1B applicants:

• For travel as a public health or healthcare professional, or researcher to facilitate 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 contractual obligations. This includes individuals, performing researches, providing IT-related services, or engaging other similar projects essential to a U.S. government agency.

• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification, as forcing employers to replace employees in this situation may become a reason of financial hardship.

• Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the economic recovery of the United States. Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

o   The petitioning employer has a continued need for the services performed by the H-1B nonimmigrant in the United States. This indicator is only valid for cases with an LCA approved during or after July 2020. Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the functions of the position for the employer from outside the United States, then this indicator is not present.

o   The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure sectors such as 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.  Employment in one of the mentioned sectors alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:

§  Senior level placement within the petitioning organization or job duties reflecting the performance of functions that are both unique and vital to the management and success of the overall business enterprise;

§  The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

o   The salary paid to the H-1B applicant emphatically exceeds the prevailing salary by at least 15%. When this happens, it suggests that the employee fills an important business need where an American worker is not available.

o   The H-1B applicant’s education, training or experience demonstrates unusual expertise in the specialty occupation in which the applicant will be employed. 

o   Denial of the visa according to the Proclamation will cause financial hardship to the U.S. employer. The employer’s inability to meet financial or contractual obligations or 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 may constitute a financial hardship for an employer if a visa is denied.

H-2B applicants

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or contractual obligations, such as supporting U.S. military base construction or IT infrastructure.

• Travel necessary to facilitate the instant economic recovery of the United States. Consular officers may determine that an H-2B applicant falls into this category when at least two of the following three indicators are present:

o   The applicant was previously employed and trained by the petitioning U.S. employer and he must have previously worked under two or more H-2B petitions.

o   The applicant is traveling based on a temporary labor certification (TLC) that shows the need for the worker. Therefore this indicator is only present for cases with a TLC approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-2B worker.

o   Denial of the visa consequent to the Proclamation will cause financial hardship to the U.S. employer. 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 may constitute a financial hardship for an employer if a visa is denied.

J-1 applicants

• 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 such as medical, special education, or sign language.

• Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant 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 in providing help to individuals who have contracted COVID-19 or medical research to help the United States combat COVID-19.

• An exchange program according to an MOU, Statement of Intent, or other valid agreement between a foreign government and any federal, state, or local government entity in the United States that is intended to promote U.S. national interests.

• Interns and Trainees on U.S. government agency-sponsored programs: An exchange visitor participating in the program supporting the economic recovery of the United States, in which he or she will be hosted by a U.S. government agency.

• An exchange visitor participating in the exchange program in which he or she will teach full-time, including in-person education, in primary or secondary educational institutions. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and teach his/her assigned subject(s) in that language.

• Critical foreign policy objective which includes programs where an exchange visitor participating in an exchange program that fulfills critical and time-sensitive foreign policy objectives.

L-1A applicants

• Travel as a public healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic.

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or contractual obligations such as 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 satisfying critical infrastructure sectors such as 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' needs. An L-1A applicant falls into this category when at least two of the following three indicators are present:

o   Will be a senior-level executive or manager;

o   Worked a few 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;

o   Will fill a critical business need for a company meeting a critical infrastructure need.

L-1B applicants

• Travel as a public healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, to conduct ongoing medical research in an area with a substantial public health benefit.

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives such as supporting U.S. military base construction or IT infrastructure.

• Travel by applicants seeking to continue 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.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:

o   The applicant's proposed job duties and specialized knowledge indicate that he/she will be useful for the petitioning company;

o   The applicant’s specialized knowledge is compatible with a critical infrastructure need;

o   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.

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

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 to P.P. 10052.

To understand whether you may be eligible for an exception to the Proclamations, contact our office.