Cyrus Mehta

Overcoming a COVID Travel Ban Through the National Interest Exception

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By Cyrus D. Mehta & Kaitlyn Box*

Although the Trump era has ended, some of its draconian immigration policies continue to linger, including the COVID travel bans. On January 25, 2021, President Biden issued Presidential Proclamation 10143, entitled “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease”, which effectively extends many of the Trump administration’s COVID bans. Proclamation 10143 suspends the entry into the United States of noncitizens who were physically present in the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa within the 14 days preceding their attempted entry into the United States. As with the Trump-era COVID bans, Proclamation 10143 outlines several categories of individuals who are exempt from the ban, including certain relatives of U.S. citizens and LPRs, diplomats, members of the Armed Forces, and those working to treat or contain COVID-19. Importantly, “any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees” is also exempt from the ban.

The DOS further clarified this exception, issuing guidance which stated that “certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom, and Ireland”. F-1 and M-1 students who have valid visas may enter the United States without a national interest exception (NIE) waiver, while business travelers, investors, academics, J-1 students, journalists, and treaty traders must seek an NIE before traveling, whether they currently hold a valid visa or are seeking one. H-2A and certain H-2B travelers who have been present in South Africa may qualify for an NIE “if they are providing temporary labor or services essential to the United States food supply chain.”

Despite the exceptions, Proclamation 10143 still has enormous potential to snare unwary travelers. One might assume that a noncitizen flying back to the United States from a country not enumerated in the Proclamation would be exempt from the ban. However, if individuals have a layover, however brief, in a Schengen country’s airport in Frankfurt or Paris,  they become subject to the ban. Ideally, travelers want to ensure that they are not passing through the countries listed in the ban at all. Once this complication arises, though, the noncitizen can travel to a second country that is not subject to the ban and spend at least 14 days there before attempting to reenter the United States. Someone who lives in a country subject to the Proclamation, though, this might not be possible. It could cause an individual living in Brazil, for example, undue hardship to have to spend 14 days in a second country before coming to the United States. During the pandemic, each country has imposed its own travel restrictions and it may not be easy to hop from one country to another before entering the U.S.

The other way that a noncitizen subject to the ban may reenter the United States is by obtaining a national interest exception waiver. To do so, one needs to contact the relevant consulate, usually by email, to request a waiver. The email must state the noncitizen’s biographical details, contact information, and proposed itinerary. A copy of the noncitizen’s passport biographical page and visa page should be attached. Most importantly, an NIE request must outline the justification for the waiver. It may be especially helpful to demonstrate that the noncitizen is working in a significant role in critical infrastructure. One may reference the CISA guidelines for a list of essential infrastructure, which includes healthcare, education, transportation, financial services, and communications and IT, to highlight only a few industries. The consulate may approve or deny the waiver straight way, or may request that additional information be provided.

In some instances, an NIE waiver request may also be made to CBP rather than a consulate. CBP at JFK airport, for example, requires that a noncitizen first request a waiver through DOS. If 14 days have passed without a response from DOS, CBP will entertain the waiver request. The noncitizen may be required to demonstrate proof that they have attempted to follow up with DOS beyond the initial waiver request. CBP at JFK will also take NIE waiver request in emergency or humanitarian cases. Other ports of entry may have similar policies. For a list of the policies of other ports of entry on regarding the NIE, see Practice Alert: National Interest Exemption (NIE) and Satisfactory Departure (SD) Procedure Spreadsheet for Requests at CBP Ports and Preclearance Locations Due to COVID-19, AILA InfoNet at Doc. No. 20032043 (July 22, 2020).

The COVID bans are not the only Trump era immigration policies that remain in effect. Although Biden recently rescinded Proclamation 10014, which suspended certain green card applications, and restricted some nonimmigrant visa categories, Proclamation 10052 is very much alive. Proclamation 10052, an extension of Proclamation 10014, restricts the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the Proclamation, June 24, 2020, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. We have discussed both Proclamation 10014 and Proclamation 10052 in our previous blogs. Proclamation 10052 was extended to March 31, 2021 at the end of the Trump administration, and will continue to impose hardship and separate families until that date if it is not rescinded by the Biden administration. Notably, a noncitizen who has been in one of the countries listed in Proclamation 10143 without a visa since June 24, 2020 would be subject to both Proclamations. Proclamation 10052 also exempts “any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”, but the national interest exceptions for H-1Bs and Ls in Proclamation 10052 have different standards from the NIE in the COVID ban.

As detailed in a prior blog, it is reiterated that there are better ways to curb the spread of COVID-19 than imposing travel bans. Given the number of exceptions to these bans, it is questionable how effective they could be at controlling COVID-19, since an exempt traveler is just as likely to have contracted COVID as a noncitizen who is covered by the Proclamation. Currently the United States requires travelers to provide a recent negative COVID test before entering. Even if a negative COVID test is not considered a sufficient safeguard against the spread of COVID-19, however, other measures could be imposed, such as requiring travelers to quarantine for a few days before entering the United States. As the vaccine becomes more readily available, noncitizens who provide proof of vaccination should also be able to freely enter the United States.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

Cora-Ann Pestaina

To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application

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As the COVID-19 pandemic unfortunately rages on, employers nationwide continue to seek ways to keep their businesses open and reduce costs while also protecting their nonimmigrant employees. This blog has addressed, here, here and here, some of the unique challenges facing employers of H-1B and other nonimmigrant workers. Employers have basically come to accept the fact that the H-1B worker is tethered to the LCA and there are several changes that could necessitate the filing of an amended petition. But while it is generally understood that other work visas such as the E-1, E-2, L-1, O and TN visas afford greater flexibility because they are not subject to the LCA, the lack of specific governmental guidance means that employers are still unsure of what steps they can and cannot take with regard to their workers in these visa categories. This blog discusses best practices for employers considering remote work, furloughs, reduction in hours of work or salary reductions for employees in nonimmigrant visa categories without wage requirements.

Change in Work Location

One requirement common to all visa types is that USCIS must be notified if there is a material change in the terms of employment. Over the past year, many employers have had to close headquarters and implement remote work policies. Because the E, L, O and TN visas do not require an LCA, they are not as location specific as the H-1B and they afford more flexibility regarding a change in the nonimmigrant employee’s work location.

In the L-1 context, 8 C.F.R. § 214.2(1)(7)(i)(C) states that an employer should file an amended petition to reflect changes in approved relationships, additional qualifying organizations under a blanket petition, change in capacity of employment (i.e. from a specialized knowledge position to a managerial position), or any information which would affect the beneficiary’s eligibility under the Act. As long as the L-1 employee continues to perform the duties of the approved L-1, a change in work location, especially if only temporary, should not be considered sufficiently material to require the filing of an amendment. However, employers of nonimmigrant workers in L-1 status, and especially when the change in work location will be long-term, should consider the fact that L-1s are subject to USCIS site visits. The employer should consider whether it makes more sense to file the L-1 amendment in an effort to protect against the potential negative effect of a failed USCIS site visit to the initial L-1 worksite. This was exactly what happened in Matter of W- Ltd., ID# 1735950 (AAO Nov. 20, 2018). This non-precedent decision involved an employer who relocated the L-1 employee without filing an amendment. Upon discovering, after a site visit, that the L-1 was no longer employed at the original worksite, USCIS issued a Notice of Intent to Revoke (NOIR) the approved L-1 petition. This was despite the fact that the officer was able to speak to the L-1 employee’s supervisor at the worksite, interview the L-1 employee over the phone and collect additional information from the L-1 employee via email! The employer responded to the NOIR explaining the relocation and that the L-1 employee continued to perform in the same position. However, the L-1 was still revoked. USCIS stated that it was not evident that the beneficiary was currently employed in a managerial position pursuant to the terms and conditions of the approved petition. Upon appeal, the employer successfully argued that neither the statute, regulations, nor USCIS policy expressly require an L- I employer to file an amended petition in every instance where a beneficiary is transferred to a new worksite to perform similar duties for the same employer. The Administrative Appeals Office (AAO) agreed and held that the L-1 had been improperly revoked. While this decision is excellent it is still only a non-precedent decision and the AAO stated that such determinations must be made on a case-by-case basis. Employers considering permanently relocating their L-1 employees may wish to engage in a costs-benefits analysis to determine whether it would make more sense to simply file the amended petition rather than risk a failed site visit and a possible revocation which would likely have a negative impact on their business and on the L-1 employee who would not be able to continue to work and may even have to leave the US while the revocation is under appeal. If the L-1 obtained L-1 status based on a blanket L-1 petition and will be relocated to an office location already listed in the approved blanket petition, then the L-1 amended petition would not be required.

The E, O and TN visas are not currently subject to site visits. As long as the other terms and conditions of employment remain the same, it is not likely that an employer would encounter any issues in implementing a switch to remote work.

Furloughs

A ‘furlough’ is a temporary leave of absence from employment duties, without pay. Employers continue to consider furloughs as a means to decrease spending as the pandemic continues. Generally, a nonimmigrant worker may request unpaid leave for personal reasons, such as to take care of a sick parent, and the employer may grant this leave as long as it is well documented in the employee’s file, the period of absence is reasonable, and the employer-employee relationship is maintained throughout the leave. But a furlough is not a voluntary request for leave.

Since there has been no communication to the contrary from USCIS, a furlough can only be interpreted in one way and that is to effectively place the nonimmigrant worker employee out of status. An employer who wants to implement furloughs but maintain the ability of the E, L-1, O or TN worker to return to work at the end of the furlough period, could take advantage of the fact that employees in these nonimmigrant statuses, under 8 CFR 214.1(l)(2) are allowed a grace period of 60 days upon a cessation of their employment. Specifically, these nonimmigrant workers shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which their nonimmigrant classification was based, for up to 60 consecutive days. The grace period could be shortened if worker’s remaining nonimmigrant status validity period is less than 60 days. In this case, the grace period will end when the status expires. If the employee is rehired, under the same working conditions described in their nonimmigrant visa petition, before the end of their grace period, then they could go back to business as usual. A nonimmigrant worker may only be granted this grace period once during each authorized validity period. Accordingly, an employer could only utilize this furlough strategy once during the employee’s validity period without jeopardizing the employee’s nonimmigrant status and maintaining the ability to rehire the employee.

Reduction in the Number of Hours Worked

A reduction in the number of hours worked, switching from full-time to part-time employment, could be considered a material change necessitating the filing of an amended petition. Because the E, L-1, O and TN visas are not tied to an LCA, it may be possible for the employer to reduce the nonimmigrant employee’s work hours especially if that change will only be temporary. While it could be argued that the switch to part-time employment is not material, the issue must be analyzed on a case by case basis to ensure that all other terms and conditions of the nonimmigrant worker’s employment will remain the same especially if the change will be long-term. For example, if there are some job duties that will no longer be performed, perhaps because the company downsized, best practices may necessitate the filing of an amended petition to describe the new part-time position.

Salary Reduction

Once again, because there is no LCA and therefore, no prevailing wage requirement attached to the E, L-1, O and TN visas, a reduction in salary may be permissible as long as the other terms and conditions of employment continue to be fulfilled.  The facts of each case ought to be carefully examined. If the L-1 nonimmigrant worker will continue to work in their executive, managerial or specialized knowledge capacity, a reduction in salary, especially when company-wide, should likely have no effect on L-1 status. Cyrus Mehta discussed the effect of salary reductions here and pointed out that while it is quite settled that the L-1 worker’s employment is not necessarily determinative upon the amount or existence of a salary, the question of whether the L-1 worker’s salary is commensurate with his or her executive, managerial or specialized knowledge position is one that should be carefully considered, especially if that change is significant. For example, a substantial salary reduction, such as halving of the original salary, may be significant enough to warrant an amended L-1 petition. Again, this must be assessed on a case by case basis. If the L-1 worker continues to perform in the same capacity, and continues to be compensated from overseas, then it may still be defensible to not file an amendment.  Further, employers should be careful not to offer a wage that violates the minimum wage under the Fair Labor Standards Act. USCIS is prohibited from approving such an L-1 petition under its adopted decision, Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017).

For an E-2 investor, a reduction in salary is permissible as long as the E-2 enterprise does not become marginal. An enterprise is marginal if it does not have the present or future capacity to generate income to provide for more than a minimal living for the E-2 investor and family. An enterprise that continues to employ workers other than the investor and his or her family is not marginal. Similar to the above discussion in the L-1 context, employers of E-1/E-2 employees in managerial, executive, essential or specialized positions should always consider whether a new, lower salary is still commensurate with the nature of the E-2 position.

In the end, it is worth reiterating that every case must be examined on its own merits. While great flexibilities may exist with regard to what could be considered a material change in E, L, O and TN contexts, that doesn’t mean that the government won’t ask questions later. A careful costs-benefits analysis may lead to the conclusion that it is safest to file an amended petition rather than being forced to later defend current decisions. Having said that, the costs-benefits analysis must include the fact that USCIS rescinded its policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status. This policy has not yet been rescinded by the Biden administration. Employers must consider whether the bigger risk lies in filing an amended petition only to have it be denied for new reasons that were not at issue when the initial petition was approved or in not filing the amendment and leaving the matter open to potential questions or an NOIR in the future.

Cyrus Mehta

State Dept. Exempts Certain Travelers From Restrictions: Is there a Better Way So That the Least Number Get Impacted?

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On February 10, 2021, the Department of State (DOS) announced that certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom (UK), and Ireland. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) may travel to the United States while the PP remains in effect following the procedures below, DOS said.

Also, on January 28, 2021, DOS announced that certain H-2 travelers from South Africa may qualify for national interest exceptions.

Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Applicants who are otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.

Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class or an ESTA authorization issued before the PP’s effective date, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

“Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship,” DOS said.

H-2A and certain H-2B travelers who have been present in South Africa may qualify for national interest exceptions “if they are providing temporary labor or services essential to the United States food supply chain.” A non-exhaustive list of covered occupations includes seafood processors, fish cutters, salmon roe technicians, farm equipment mechanics, and agriculture equipment operators. Applicants applying for a visa will be considered for an exception at the time of interview, DOS said. “Travelers who already hold valid H-2A or food-supply-chain related H-2B visas and believe they meet the exception criteria should follow the procedures set forth on the Embassy/Consulate website where their visa was processed for consideration for an exception,” DOS said. The exception criteria only apply to H-2 travelers and applicants subject to a January 25, 2021, Presidential Proclamation due to physical presence in South Africa.

DOS said it continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Is There a Better Way?

While these exceptions are indeed salutary, the Covid-related proclamations instituted by Trump and continued by Biden still cause untold hardship. Moreover, nothing has been done to alleviate the hardship of those impacted by Trump’s immigrant visa ban, Proclamation 10014, and work visa ban, Proclamation 10052, that were instituted by Trump under the cover of Covid-19 but were actually based on the erroneous theory that noncitizens entering the US on legitimate visas threatened the jobs of US workers during the pandemic. Although these two proclamations were extended by Trump at the end of December 2020 with a validity date of March 31, 2021, that end period is too far away and continues to separate noncitizens from family members and employers in the US. Biden should immediately rescind these two proclamations.

While I am not a health expert, all these proclamations inherently have exceptions. For instance, US citizens and lawful permanent residents are exempted from the travel ban. These travelers could also potentially have Covid-19 when they come to the US. Does it not make more sense for all travelers to demonstrate that they are Covid negative before they travel to the US through a test result? The US has already imposed this requirement as of January 26, 2021.  If there is concern that one who tests negative may still contract the infection after the test and while travelling to the US, then there could also be a few days of quarantine imposed on the traveler upon entering the US. As the vaccine gets more prevalent, then one who has had the vaccine could also be allowed to travel to the US, although there will be many, especially from poorer countries, who may not have the same access to the vaccine as those from richer countries.  Some may not be able to take the vaccine for medical or personal reasons.  Therefore, rather than require a mandatory “vaccine passport” in the near future, a traveler ought to  be allowed entry into the US based on either a negative test result or upon proving they have have been vaccinated.

These safeguards would eliminate the need to have area wide and country bans related to Covid-19. Proclamations 10014 and 10052 are in any event not based on concerns of spreading Covid-19 in the US. There must be a more scientific way of preventing the spread of Covid-19 by ensuring negative test results, and subsequently being vaccinated,  rather than use the immigration system to block legitimate noncitizen travelers to the US and thus eliminate the needless hardship to them.