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U.S. Department of State Expands on the National Interest Exceptions to the Presidential Proclamation on H1 & L1 Nonimmigrant Visa Bans

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Pasricha & Patel

The U.S. Department of State has just added new categories to the National Interest Exceptions to the Presidential Proclamations (10014 & 10052) banning certain nonimmigrant visa applicants (H1B and L-1 workers) from entering the U.S.

Generally, in these new guidelines, foreign workers may be able to apply for new H-1B and L-1 visas if they are returning to the U.S. to:

  1. Continue in previously approved employment with the same employer andin the same visa category, or
  2. If the employment meets specific economic recovery criteria (i.e. ifthe U.S. employer is fulfilling critical U.S. infrastructure need in aspecific industry and the visa applicant possesses unusual or highlyskilled or experience or expertise and other criteria that are related tothe offered position.

More specifically for H-1B worker national interest exception:

  1. The employee must be seeking an H-1B visa to return to the U.S. toresume ongoing employment with the same employer and the same visaclassification and with the same employer.


  1. The visa applicant must be able to meet at least two (2) out of the five (5) factors below:
    1. The employer has a continuing need for the H-1B applicant’s services, and as long there is a certified Labor Condition Application (LCA) approved during or after July 2020 for that H-1B applicant.

      i. But if the H-1B visa applicant is currently performing, or is able to perform these duties from abroad, then this will not meet that criteria.

  2. The U.S. employer is engaged in a business that is part of critical infrastructure need and the H-1B visa applicant’s job duties or position in the company will provide significant and unique contributions to the employer.

    i. The critical infrastructure sectors are defined to include: financial services, information technology, communications, healthcare and public health, transportation, chemical, defense, water systems and nuclear reactors.

    ii. And the visa applicant must either hold a senior-level position within the U.S. company, or have duties that are unique and vital to the management and success of the overall business operations, OR the vis applicant must be able to show that the proposed duties and qualifications are specialized in nature and that the visa applicant will be making significant contributions to the U.S. employer

  3. The wage being paid to the H-1B visa applicant must exceed the prevailing wage rate by at least 15 percent.
    1. The H-1B visa applicant’s education, training and/or experiencecan be shown to possess unusual expertise in the specialty occupation inwhich the applicant will be employed (i.e. holder of doctorate orprofessional degree related to the position, or possess multiple years ofrelevant work experience).
    2. A denial of the visa application due to the visa ban will causefinancial hardship to the U.S. employer (i.e. inability to meet financialor contractual obligations; inability to continue the business of theemployer or prevent the U.S. employer’s ability to return to pre-pandemiclevel of business activities).

For the L-1A manager/executive national interest exceptions:

  1. The L-1A employee must be seeking an L-1 visa to return to the resume ongoing employment with the same employer and same visaclassification and with the same employer.


  1. An L-1A visa applicant (note: this does NOT apply to those L-1Amanagers coming to open a new office in the U.S.) may be eligible for anational interest exception if he/she is a senior-level manager orexecutive, AND can show at least two (2) of the following factors:
    1. The applicant will be a senior-level manager or executive;
    2. The applicant has spent multiple years with the company abroad andshows substantial knowledge and expertise within the companythat can onlybe replaced by a new employee within the company after extensive trainingand which would mean major financial hardship for the employer.
    3. The applicant will be filling a critical business need for theemployer who is also meeting a critical infrastructure need in thedesignated industry (same designated industries as those listed under theH-1B national interest exception category).

For the L-1B specialized knowledge worker national interest exceptions:

  1. The L-1B employee must be seeking an L-1 visa to return to the resume ongoing employment with the same employer and same visaclassification and with the same employer.


  1. An L-1B visa applicant may be eligible for a national interestexception if he/she is a technical expert or specialist that meets acritical infrastructure need. And in order to qualify for this exception,the L-1B visa applicant must meet all of the factors below:
    1. The proposed job duties and specialized knowledge demonstrate thatthe applicant will provide significant and unique contributionsto the U.S.petitioner
    2. The applicant’s specialized knowledge is specifically related to acritical infrastructure need, and
    3. The applicant has spent many years with the foreign company and isable to show substantial knowledge and expertise within the company thatcan only be replaced by a new employee within the company after extensivetraining and that would cause financial hardship to the employer.

It should also be noted that the H-4, and L-2 dependent family applicants of the principal H/L principal workers who fit within the national interest exceptions can also apply for their dependent visas as accompanying, or following to join the principal applicant.

While it is certainly good news to see these added exceptions to the national interest exception category, these are by no means easy criteria to meet. Furthermore, most U.S. consulates and embassies are still closed or only slowly re-opening. So, even if the H/L visa applicant wants to avail themselves to the particular national interest exceptions that fit their particular circumstances, it could still be a long wait before the H/L visa applicant can even secure the necessary visa appointment to appear before the visa officer to present their specific visa applications and national interest exception cases.

Due to the ever-evolving nature of various immigration-related news and events, we continue to encourage readers to follow our website and platform for updated information and developments. Should you have any specific questions or concerns about immigration, we suggest you contact our office to schedule formal consultation and then we can assist you further.