What are the National Interest Exceptions for processing of H-1B and H-4 Visa under the June 22, 2020 Executive Order?
The Presidential Proclamation 10052 effective as of June 24, 2020 suspends the issuance of H-1B visas until December 31, 2020 to foreign individuals applying for this visa to work in specialty occupations, the U.S. Department of Defense (DOD) Cooperative Research and Development Projects and as fashion models in the United States, and accompanying spouses and children of such applicants, applying for H-4 Visa.
The executive order suspends the processing of H-1B visas at US Embassies and Consulates abroad until December 31, 2020, unless the applicants for H-1B visas are not subject to the order or they qualify for a National Interest Exception.
However, the executive order does not apply to those individuals who already had a valid H-1B or H-4 visa in their passport as of June 24, 2020 or who were present on the territory of the United States as of June 24, 2020.
However, for those foreign individuals who are subject to the order suspending the issuance of H-1B visas and did not have a H-1B visa before June 24, 2020 or were not physically present in the United States on June 24, 2020, the US Department of State has provided a number of national interest exceptions to allow the processing of H-1B visas and expedite interview before December 31, 2020 when travel would be in the National Interest of the United States.
The consular officers at US Embassies and Consulates abroad will determine, in his or her discretion, if an applicant for H-1B visa falls under a national interest exception for expedite interview and visa processing and be issued a visa despite the suspension.
You can qualify for a National Interest Exception and Expedite Interview to get a H-1B visa before December 31, 2020
In order to qualify for a National Interest Exception and obtain a H-1B visa you must fall under at least one of the following categories of travel or other exception:
- You travel as a public health or healthcare professional or researcher to improve the effects of COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (for example cancer or communicable disease research).
This national interest category includes those individuals who are traveling to the US to alleviate effects of the COVID-19 pandemic that can be a secondary effect of the pandemic. For example, travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic.
2. You travel at the request of a US agency, department or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
This national interest category includes those foreign individuals identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
3. You travel to resume existing employment in the United States in the same position with the same employer and H-1B visa classification.
This national interest category includes those individuals who are already employed in the US on an H-1B visa and are applying for a visa to continue their employment on the same position and for the same US company. Forcing US companies to replace employees under this executive order and H-1B visa suspension may cause financial hardship for the sponsoring company.
4. You are a technical specialist, senior level manager, and other worker whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.
To fall under this national interest category, you must meet at least 2 of the following 5 criteria:
- The petitioning US employer has a continued need for the services or labor to be performed by the H-1B applicant in the United States.
Labor Condition Applications (LCAs) approved by U.S. Department of Labor (DOL) during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business and present an indication that the petitioner still has a need for the H-1B worker. For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.
Regardless of when the LCA was approved, if the H-1B applicant is currently performing or is able to perform the essential functions of the position for the prospective US employer remotely from outside the United States, then this indicator is not present.
- The H1-B applicant’s proposed job duties or position within the petitioning US company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.
Critical infrastructure sectors are 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 a critical infrastructure sector alone is not sufficient. the consular officers must establish that the applicant holds one of the two types of positions below:
a. Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
b. The H-1B applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
- The wage rate paid to the H-1B visa applicant meaningfully exceeds the prevailing wage rate by at least 15 percent.
An H-1B applicant receiving a wage that meaningfully exceeds the prevailing wage suggests that the employee fills an important business need where an American worker is not available.
- The H-1B visa applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.
For example, an H-1B applicant with a doctorate (Ph.D.) or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
- Denial of the H-1B visa pursuant to this executive order will cause financial hardship to the U.S. employer.
The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for a US sponsoring company if a visa is denied: 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.
How can our Miami Florida immigration lawyers help?
At Malescu Law, our Miami Florida business and immigration attorneys can assist you to establish that you are eligible for National Interest Exception for H-1B visa in front of the consular officer, prepare you for the visa interview and prepare your H-1B visa application and supporting documents. Contact us now!
Malescu Law P.A. – Business & Immigration Lawyers