3 Eligibility Criteria for Overcoming L-1 Travel Ban

National Interest Exceptions to Travel Ban: 3 Eligibility Criteria for L-1 Applicants

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 (DOS) has expanded exceptions for H-1B visa applicants, L-1A and L-1B visa applicants, and J-1 visa applicants.

Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification can now travel to the U.S. 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 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

L-1A Exceptions

Additionally, the proclamations included exceptions for individuals whose entry would be in the national interest. The Department of State recently allowed “Travel by a senior level manager or executive filling a critical business need of an employer meeting a critical infrastructure need.

An L-1A applicant must not be entering to establish a new office and must meet at least two of three indicators.

#1 – The applicant will be a senior-level executive or manager

The individual must have held this role

#2 – The applicant has substantial knowledge within the organization

The Department of State notes that the individual can meet this criterion by spending multiple years with the company overseas to indicate that his or her substantial knowledge and expertise within the organization can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

#3 – The applicant will fill a critical business need for a company meeting critical infrastructure need

Critical infrastructure sectors include 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.

Note: The Department of State states that L-1A applicants seeking to establish a new office will likely not fall into this category unless they meet two of three criteria and the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B Exceptions

DOS is allowing L-1B visa applicants to travel if they are a technical expert or specialist meeting a critical infrastructure need.  The applicant must meet all three of the indicators.

#1 – Applicant will provide significant and unique contributions to petitioning company

These contributions can be demonstrated by the applicant’s proposed job duties and specialized knowledge.

#2 – Specialized knowledge is specifically related to a critical infrastructure need

The evidence required to prove this specialized knowledge will vary by industry, but should fall into one of the critical infrastructure sectors.

Critical infrastructure sectors include 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.

#3 – The applicant’s substantial knowledge is not easily replicated

An applicant can demonstrate substantial knowledge and expertise within the organization by showing multiple years of experience with the company overseas. A new employee within the company would need to follow extensive training, which would cause the employer financial hardship.

Additional Resources

Next Steps

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 info@challalaw.com to schedule a time to discuss whether your critical employees are eligible for an exception to the travel ban.