Answers to Frequently Asked Questions Regarding Current U.S. Immigration IssuesAugust 26, 2020
Rami Fakhoury and Matthew C. Morse
Fakhoury Global Immigration
What are the current restrictions that are affecting entry into the United States for foreign nationals?
There have been a series of Presidential Proclamations this year that have significantly restricted entry of foreign nationals into the United States. These proclamations have restricted the ability of foreign nationals from Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia, Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania from entering the U.S. In addition, foreign nationals who have been physically present in Schengen countries of Europe, the United Kingdom, Ireland, and Brazil are restricted from entering the U.S., unless an exemption or exception applies. There is a proclamation restricting certain foreign nationals from the People’s Republic of China from entering the U.S. There is also a proclamation restricting the ability of foreign nationals from entering the U.S. as an H-1B, H-2B, J-1, or L-1 nonimmigrant or preventing foreign nationals from applying for one of these visa types, if certain conditions are met. As of the date of this writing, the closure of the U.S. northern and southern land borders to all but essential travel remains in effect.
With the US denying entry to visa holders, how are they managing visa expirations that have to be done in the home country?
The U.S. is currently denying entry to foreign nationals who fall under one of the restrictions listed above. Travelers who are not in one of the affected categories may still be able to enter the U.S. as long as they have a valid visa or travel document.
The U.S. Department of State announced a phased-in-resumption of visa services on a post-by-post basis. Visa services remain limited to student visas and emergency visas. Foreign nationals interested in applying for other types of visas should review the website of, or send an email to, the embassy or consulate they wish to apply through for a visa.
As indicated above, certain foreign nationals are not eligible to be issued an H-1B, L-1, or H-1B1, or J-1 visa unless exempt or an exception applies to their case. If not exempt from the restriction, the U.S. embassy or consulate would need to determine if an emergency visa appointment is appropriate to request a National Interest Exception (NIE) is granted. NIEs are explained in the response to the next question.
Foreign nationals inside the U.S. in a valid nonimmigrant status should not depart the U.S. at this time. If a foreign national’s nonimmigrant status is expiring while in the U.S., an application or petition should be filed with USCIS to extend their nonimmigrant status. With respect to foreign nationals pursuing extensions of status inside the U.S. for a particular nonimmigrant category that authorizes employment, the foreign national may work for up to 240 days while the extension of stay petition is pending with the USCIS.
What is a National Interest Exception and how does one qualify for it?
If a foreign national is restricted from entering the U.S., or being issued an H-1B, H-2B, L-1, or J-1 visa, because of a presidential proclamation, the foreign national may still be eligible to obtain a visa or gain entry into the U.S. by applying for and being granted a National Interest Exception (NIE). An NIE may be granted in the following instances:
- The work or activity is related to healthcare or research designed to alleviate the effects of the COVID-19 pandemic (H-1B, L-1A, L-1B ONLY);
- The work or activity is related to a request by a U.S. government agency or entity to meet critical U.S. foreign policy objectives or satisfy treaty or contractual obligations (H-1B, H-2B, L-1A, L-1B ONLY) ;
- The work or activity is necessary to facilitate the immediate and continued economic recovery in the U.S. if two of the three criteria are met: i) the foreign national was previously employed or trained by the petitioning U.S. employer; ii) the foreign national is traveling to the U.S. based on a temporary labor certification (TLC); iii) the denial of the visa will cause significant financial hardship to the employer (H-2B ONLY)
- The work or activity entails resuming ongoing employment in the U.S. in the same position with the same employer in the same visa classification, and forcing employers to replace such workers would cause undue hardship (H-1B, L-1A, L-1B ONLY) ;
- The work or activity is technical or managerial in nature and will help facilitate the economic recovery of the U.S. if two of the five following criteria are met: i) the petitioner shows a continued need for the services or labor and/or the case contains Labor Condition Application (LCA) approved on or after July 2020; ii) the work or activity is significant and contributes to an employer meeting critical infrastructure needs; iii) the foreign national’s education, training or experience demonstrates unusual expertise; iv) the wage rate paid to the H-1B worker exceeds the prevailing wage rate by at least 15%; or v) the denial of the visa will cause significant financial hardship to the employer (H-1B ONLY);
- The work or activity involves caring for a minor U.S. citizen, Green Card holder, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (J-1 ONLY);
- The work activity prevents a U.S. citizen, Green Card holder, or other nonimmigrant in lawful status from becoming a public charge in the U.S. (J-1 ONLY);
- The work or activity involves providing childcare services for a child whose parents are involved with providing medical care to others to combat COVID-19 and/or engaged in COVID-19 research (J-1 ONLY);
- The work or activity involves an exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the U.S. that is designed to promote U.S. national interests, if agreement with the foreign government was in effect prior to June 24, 2020 (J-1 ONLY);
- The work or activity involves interns or trainees on U.S. government agency-sponsored programs, or specialized teachers in accredited educational institutions with a program number beginning with G-5 on Form DS 2019, or involves critical foreign policy objectives (J-1 ONLY);
- The foreign national is a senior-level executive or manager filing a critical business need or critical infrastructure need of the employer if two of the following three criteria are present and the foreign national is not seeking to establish a new office: i) the foreign national will be a senior-level executive or manager; ii) the foreign national has spent multiple years with the company overseas, and has 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 financial hardship to the employer; or iii) the foreign national will fill a critical infrastructure need of the employer (L-1A ONLY);
- The work or activity involves a technical expert or specialist meeting a critical infrastructure need, if the following three criteria are met: i) the foreign national’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company; ii) the foreign national’s specialized knowledge is specifically related to a critical infrastructure need, and iii) the foreign national 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 (L-1B ONLY).
What is the process for applying for an NIE?
The foreign national would submit electronically the Form DS 160 (Nonimmigrant Visa Application) to the U.S. Department of State and select a date for a visa appointment. The foreign national will then be given an opportunity to request an emergency visa appointment and would need to indicate the basis for the emergency visa. The embassy or consulate may grant the request for an earlier or emergency visa appointment. At the visa appointment, the foreign national would present his or her request for an NIE to the consular official. The foreign national will need to bring a signed statement confirming the work or activity to be engaged is in the U.S. national interest. Documentation supporting the NIE request should also be brought to the visa appointment. Consular officials have been given broad discretion to grant NIE requests as part of the visa application process.
What are the long-term projections on these proclamations from the President?
If President Trump should win re-election, we anticipate that the proclamations restricting entry into the U.S. will be extended beyond their current December 31, 2020 expiration dates.
If former Vice President Joe Biden should win, the immigration policies would be less restrictive and more favorable to immigrants. The Biden campaign has released a proposed immigration platform that would rescind President Trump’s numerous proclamations restricting entry into the U.S. immediately.
Is there any legislation that lawmakers have proposed to counter or undo the proclamations issued by President Trump?
Two bills have been introduced in the House of Representatives. The first called the “No Ban Act,” would undo the Trump Administration’s previous travel bans and require that future bans be tailored to “specific and credible facts.” The second bill, called the “Access to Counsel Act,” would require that most people stopped at a port of entry be allowed to consult with a lawyer or family member. Given that Congress is divided, it is unlikely that these bills will be enacted into law.
In addition, two major lawsuits challenging the legality of several of the proclamations were filed in July 2020. The first by the American Immigration Lawyers Association and two other plaintiffs, the second by the U.S. Chamber of Commerce and three other plaintiffs. The cases are making their way through the courts, and it is uncertain whether either will be decided before the presidential election.
If a foreign national was outside the U.S. at the time of the COVID-19 pandemic and has a valid approved H-1B or L-1 petition, but not a valid visa, will the foreign national need to wait for the Presidential Proclamation to be lifted in order to be able to apply for and be issued an H-1B or L-1 visa?
The foreign national would need to wait until the Presidential Proclamation of June 22, 2020, which restricts applicants of certain nonimmigrant visas from entering the U.S., is lifted or expires in order to be eligible to apply for an H-1B or L-1 visa, unless one of the exemptions described in the Proclamation applies, or the foreign national qualifies for a National Interest Exception (NIE).
If a foreign national is the beneficiary of an approved H-1B cap petition for the 2021 Fiscal Year (FY) (October 1, 2020 to September 30, 2021) with an October 1, 2020 start date, and is currently outside of the U.S., will the foreign national be able to apply for an H-1B visa and use it to enter the U.S. in order to begin work on October 1, 2020 or soon thereafter?
A foreign national who is the beneficiary of an approved FY2021 H-1B cap petition, who is currently outside of the U.S. will have to wait until the June 22, 2020 Presidential Proclamation is lifted or expires before being eligible to apply for an H-1B visa, unless one of the exceptions listed in the proclamation applies or the foreign national qualifies for a National Interest Exception (NIE).
Does the June 22, 2020 Presidential Proclamation prevent a foreign national in valid nonimmigrant status in the U.S. from filing an Application to Register Permanent Residence or Adjust Status (Form I-485)?
A foreign national in valid nonimmigrant status may file a Form I-485 application in the U.S. in order to try to adjust their status to that of a U.S. lawful permanent resident. In addition, the foreign national inside the U.S. may also file an Application for Employment Authorization (Form I-765) or an Application for Travel Document (Form I-131). Furthermore, a U.S. employer may still file an ETA Form 9089 (Application for Permanent Employment Certification) on behalf of a foreign national, as well as an Immigrant Petition for Alien Worker (Form I-140) on behalf of the foreign national.
Does the June 22, 2020 Presidential Proclamation prevent foreign nationals, who are inside the U.S. in valid H-1B, or L-1 status, from having an amended petition or change of employer petition filed on their behalf?
No. A foreign national inside the U.S. in valid H-1B, H-2B, L-1, or J-1 status may be eligible to have an amended petition filed on their behalf or a change of employer petition filed on their behalf. In addition, foreign nationals in valid H-1B, H-2B, L-1, or J-1 status may be eligible to extend their status in the U.S.