National Interest Exceptions: 3 Eligibility Criteria for Overcoming H-2B Travel Ban
Earlier this year, President Trump signed a presidential proclamation suspending entry to the U.S. of certain immigrant and nonimmigrant visa applicants based on their “risk to the U.S. labor market” due to the ongoing COVID-19 outbreak.
The Department of State has clarified some exceptions to the rule, allowing travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification. The update states “forcing employers to replace employees in this situation may cause financial hardship.”
As we previously reported, the orders do not apply to:
- Applicants in the United States on the effective date
- Those with valid visas at the time of the effective date
- Individuals with other official travel documents valid on the effective date
- Spouses and children of the individuals above
The proclamation also allows travel for:
- Public health or healthcare professionals and researchers entering to alleviate the effects of COVID-19 pandemic or in areas not directly related, but has been adversely impacted by the pandemic
- Individuals invited to meet U.S. foreign policy objectives, satisfy treaty or contractual obligations with a U.S. government agency
Overcoming the H-2B Ban
Additionally, the proclamations included exceptions for individuals whose entry would be in the national interest. The Department of State recently allowed for travel:
- Based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations.
- Example: supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
- Travel necessary to facilitate the immediate and continued economic recovery of the United States
- Example: working in forestry and conservation, nonfarm animal caretakers, etc.
Consular officers may determine that an H-2B applicant falls into the second category when at least two of the following three indicators are present:
#1 – Applicant previously employed and trained by petitioning U.S. employer
The applicant must have worked for the petitioning employer under two or more H-2B petitions, which can be named or unnamed. Seasonal and temporary staff often undergo substantial time and resources for training, so the Department of State argues that denying visas to the most experienced returning workers may cause financial hardship to the U.S. business.
#2 – There is a continued need for the worker as demonstrated by a temporary labor certification (TLC)
TLCs approved by the Department of Labor during or after July 2020 likely account for the effects of the COVID-19 pandemic, both on the labor market and the petitioner’s business. This indicator is met for cases with a TLC approved during or after July 2020, but may also be met for TLCs before July 2020 if the visa application sufficiently demonstrates the continuing need of petitioned workers.
#3 – The denial of the visa due to the ban will cause financial hardship to the U.S. employer
The applicant and employer must provide evidence of the financial hardship that may be incurred if the visa is denied. Examples:
- Employer may be unable to meet financial or other contractual obligations
- Employer has the inability to continue its business
- The denial would lead to a delay or other impediment to the employer’s ability to return to pre-COVID-19 level of operations
- Interview Waiver Checklist: Are you eligible for a Drop Box appointment?
- Requesting an Expedited Consular Appointment
- National Interest Exceptions to H, L, and J Travel Bans
It will be at the consular officer’s discretion as to whether visa applicants meet the criteria above. Visa appointments will be limited as embassies and consulates begin to reopen. Applicants and employers should consult with their attorneys to prepare a package of strong evidence before scheduling an appointment.
Contact us at firstname.lastname@example.org to schedule a time to discuss whether your critical employees are eligible for an exception to the travel ban.