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New Guidance Details Visa Ban’s National Interest Exceptions (1)

Aug. 12, 2020, 5:37 PMUpdated: Aug. 12, 2020, 8:47 PM

Some medical professionals, workers essential to the U.S. infrastructure, and those continuing previous employment may qualify for national interest waivers under President Donald Trump‘s proclamation suspending certain guest workers from entering the U.S.

The State Department released updated guidance Wednesday detailing criteria consulate officers will consider when reviewing waiver applications from H-1B specialty occupation workers, L-1 intracompany transfers, and H-2B and J-1 seasonal and summer exchange guest workers.

For H-1B and L-1 specialty occupation visa holders, those criteria for an exception include being public health and health-care professionals, or researchers working to alleviate the effects of the Covid-19 pandemic; individuals seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification; and technical specialists, senior level managers, and other workers whose travel “is necessary to facilitate the immediate and continued economic recovery of the United States.”

The guidance comes more than a month and a half after the proclamation was released June 22. In the wake of the order, affected businesses and individuals have sued the administration, challenging the White House’s assertion that the visa freeze is needed to protect jobs for U.S. workers.

U.S. District Judge Amit Mehta of the U.S. District Court for the District of Columbia will consider granting a preliminary injunction to the challengers in that case, Gomez v. Trump, at an Aug. 27 hearing in Washington.

The State Department guidance also says employers that can prove financial hardship if the visa is denied, or can show the visa applicant’s education, training and/or experience demonstrate “unusual expertise” in the specialty occupation in which the applicant will be employed, may also be considered for an exception to the proclamation.

Exceptions may also be granted to J-1 au pairs who are caring for children with special medical or education needs, or providing child care services for parents who are treating Covid-19 patients or conducting research on the coronavirus.

Reversal From Administration

The new exceptions seemed specifically aimed at litigation over the June 22 proclamation, said Charles Kuck of Kuck Baxter Immigration Partners LLC. He represents winners of the diversity visa lottery who are challenging Trump’s order.

“This proclamation literally attempts to eviscerate the Gomez case,” Kuck said, and is “basically a complete walk back of the prior exemptions and prohibitions” found in the original order. For example, the State Department’s definition of jobs that pertain to critical infrastructure industries in the new guidance is a major expansion of how it may have traditionally been defined, he said.

Kuck has filed a friend of the court brief in the Gomez case.

“The average person thinks a nuclear plant, but now it encompasses IT firms, communications, food and agriculture. I can’t think of a sector that’s not included under the H-1B applicants” exemptions, he said.

Kuck predicted that many visa hopefuls stuck outside the U.S. will likely be able to prove they qualify for a national interest waiver to the ban.

“It seems like most people stuck right now, who have been denied an exemption in the past, will easily qualify,” he said. “It’s a complete walk back because they know they’re going to lose this litigation.”

A representative for the State Department didn’t immediately respond to a request for comment on the potential number of visa applicants who will qualify for an exception or the pending litigation.

(Adds attorney's comments in lower half of story.)

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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