What are the National Interest Exceptions for an H-2B Visa before December 31, 2020?
The June 22, 2020 Presidential Proclamation 10052 suspends the entry into the United States of foreign individuals on an H-2B visa until December 31, 2020, unless the H-2B visa applicant is not subject to the order. The executive order applies only to those individuals who do not have an H-2B visa in their passport as of June 24, 2020 (individuals applying for an H-2B visa at the US Consulate or Embassy abroad after June 24, 2020) or who are not in the United States as of June 24, 2020.
Effectively, the proclamation suspends the issuance of the H-2B visa after June 24, 2020 at a US Embassy or Consulate abroad and until December 31, 2020 unless the foreign individual qualifies for an exception under the current executive order.
The H-2B visa is available for non-agricultural workers and must have a US company or agent petition with USCIS for the H-2B status.
This executive order includes exceptions for H-2B visa applicants whose travel would be in the national interest of the United States. There are certain types of travel that can be considered to be in the national interest for the purposes of the H-2B visa.
You can qualify for a National Interest Exception to get an H-2B visa before December 31, 2020
In order to qualify for a National Interest Exception and obtain an H-2B visa prior to December 31, 2020, you must fall under at least one of the following categories of travel or other exception:
1.Request from a US government agency or entity. Your travel is requested by a US government agency or entity for the purpose of meeting critical foreign policy objectives or to satisfy treaty or contractual obligations. Department of Homeland Security provides an example for this category, such as your travel will support a US military base construction (associated with the National Defense Authorization Act) or IT infrastructure.
2.Your travel assists with the immediate economic recovery of the US. A national interest exception for an H-2B visa is available in cases where your travel will help with the immediate and continued economic recovery of the US such as for those individuals working in forestry and conservation, nonfarm animal caretakers, and others. According to the Department of Homeland Security, the officers at a US Embassy or Consulate abroad can determine that an individual falls into this national interest exception category if the individual meets at least 2 of the following 3 criteria:
- You were previously employed and trained by the US sponsoring company. The H-2B applicant previously worked for the petitioning U.S. employer under two or more H-2B (named or unnamed) petitions.
- You are travelling based on a temporary labor certification (TLC) and the TLC that reflects continued need for the H-2B worker. The TLCs approved by 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. For TLCs approved before July 2020, this criterion is only met if the consular officer at a US Embassy or Consulate abroad is able to determine from the H-2B visa application the continuing need of petitioned H-2B workers with the U.S. company.
- Denial of the visa based on the June 22, 2020 Executive Order will result in financial hardship to the US company. According to the Department of Homeland Security, some examples that illustrate financial hardship for the US company and that are assessed based on information provided in the H-2B visa application include the US employer’s inability to meet financial or contractual obligations, the US 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.
Spouses and children of the H-2B visa applicant under the National Interest Exceptions regulation.
If the H-2B applicant is granted National Interest Exception, then his or her spouse and children can accompany them in the United States on an H-4 visa under the same National Interest Exception.
The spouse and children of the H-2B applicant who has been granted a National Interest Exception can join the H-2B visa holder on an H-4 visa under the National Interest Exception.
The spouse and children do not need a national interest exception and can apply for the H-4 visa without exceptions if the spouse holding the H-2B visa was in the US on June 24, 2020 or had the H-2B visa stamp in the passport at that time.
Contact our experienced business and immigration attorneys in Miami, Florida USA to assist you with your H-2B visa application or schedule an appointment to learn how you can meet the H-2B visa requirements.
Malescu Law P.A. – Business & Immigration Lawyers