Department of State Issues Guidelines for Exceptions to Presidential Proclamations Suspending Entry on Certain Nonimmigrant and Immigrant Visas

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. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act)

As previously-reported in one of our blog posts, on June 22, 2020, a new Presidential Proclamation extended a previously-issued proclamation suspending entry on certain immigrant visas (P.P. 10014) through December 31, 2020, and suspended the entry to the United States of foreign nationals on certain nonimmigrant visas, including H-1B, H-2B, L, J categories, and their dependents. The proclamations allowed for certain exceptions in the national interest. However, the proclamations did not specify the process or guidelines for such exceptions. On July 17, 2020, the U.S. Department of State issued guidelines describing the scenarios in which such exceptions may be available:

Exceptions for certain travel in the national interest by nonimmigrants:

An exception may be available to applicants who are subject to aging out of their current immigrant visa classification before the relevant presidential proclamations expire or within two weeks thereafter.

For H-1B visas, exceptions are available in these situations:

For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).

Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agen or IT infrastructure.

For J-1 visas, exceptions are available in these situations:

Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.

Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.

Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.

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 United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.

Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.

Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.

Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.

For L-1 visas, exceptions are available in this situation:

Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.

H-4, L-2, and J-2 visas exceptions:

National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to the June 22 proclamation (including those that have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.

Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa appointment at the closest Embassy or Consulate and a decision will be made at the time of interview. The Department of State encourages applicants to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.

The Department of State will continue to issue H-4, L-2, and J-2 visas to otherwise qualified derivative applicants who qualify for a national interest exception, such as those seeking to join a principal applicant currently in the United States.

Applicants for immigrant visas covered by Presidential Proclamations 10014 and 10052, including Diversity Visa 2020 (DV-2020) applicants, who have not been issued an immigrant visa as of April 23, are subject to the proclamation's restrictions unless eligible for an exception. No valid visas will be revoked under this proclamation.

Our team is continuing to closely monitor this situation. The impact of presidential proclamations and their implementation on U.S. immigration is continually evolving. It is important to consult with immigration counsel before applying for an exception and before making any international travel arrangements.