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State Department Issues Guidance on Visa Ban Exceptions

August 31, 2020

The U.S. State Department recently released guidance detailing exceptions that U.S. Consular Officers can apply when reviewing waiver applications from H-1B specialty occupation workers, L-1 intracompany transfers, H-2B, and J-1 seasonal and summer exchange guest workers. The guidance comes more than a month and a half after the Presidential Proclamation banning the issuance of certain nonimmigrant visas was released on June 22, 2020.

Exceptions for H-1B and L-1 workers include the following:

  • Being public health and health-care professionals, or researchers working to alleviate the effects of the Covid-19 pandemic
  • Individuals seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification
  • Technical specialists, senior-level managers, and other workers whose travel “is necessary to facilitate the immediate and continued economic recovery of the United States.”

The U.S. State Department guidance also states that employers who can show evidence of financial hardship if the visa is denied, or can show the visa applicant’s education, training, and/or experience demonstrating “unusual expertise” in the specialty occupation in which the applicant will be employed, may also be considered for an exception to the Presidential Proclamation.

If normal consular visa processing has not re-started or if interviews are only available many months out, many applicants who qualify for one of the above exceptions may also qualify to request an emergency appointment as part of their request. Some visa applicants may also be subject to travel restrictions pursuant to the Presidential Proclamations on Novel Coronavirus suspending entry into the United States of certain nonimmigrants traveling directly from Brazil, China, Iran, the European Schengen Area or the United Kingdom and Ireland. These Proclamations also include specific exemptions and exceptions.

Clark Hill is closely monitoring these new developments regarding international travel and will provide any new information as it arises. Should you have any questions, please contact the Clark Hill attorney with whom you regularly work or contact Rob Neale 415-984-8573.

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