Exceptions to Trump Visa Ban Clarified by Department of State

The U.S. Department of State (DOS) issued an expanded list of the types of travel that it might consider to be in the national interest when making decisions on visa applications.

** LEGAL UPDATE **

Although Donald Trump’s Proclamation 10052 blocked U.S. entry for a number of types of visa applicants (in categories H-1B, H-2B, L-1, and J-1), a measure to supposedly reduce the risks of contact with persons who might carry coronavirus or COVID-19, it carved out various exceptions. Many of these might be useful if you are seeking a visa to the United States.

In particular, one exception is for applicants whose travel would be in the U.S. national interest. On July 22, 2020, the U.S. Department of State (DOS) issued an expanded list of the types of travel that it might consider to be in the national interest when making decisions on visa applications.

Below is a summary of this DOS list. Note also that DOS says this is a "non-exclusive list," meaning one could attempt to make an argument for an exception on some other type of national-interest ground.

H-1B Possible National Interest Exceptions

The DOS will consider making an exception if an H-1B applicant plans to:

  • 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 (such as research into cancer or communicable diseases). This includes applicants traveling to alleviate effects of the COVID-19 pandemic.
  • travel based on 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 includes people identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or involved in similar projects essential to a U.S. government agency.

H-2B Possible National Interest Exceptions

The DOS will consider making an exception if the H-2B applicant plans to 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. One example would be supporting the construction of U.S. military bases or IT infrastructure.

J-1 Possible National Interest Exceptions

The DOS will consider making an exception if J-1 applicant plans to come to the U.S. as:

  • an au pair who will be caring for a minor U.S. citizen, lawful permanent resident (LPR), or nonimmigrant visa holder in lawful status, in a case where the au pair has special skills required for a child with particular medical, special education, or sign language needs, as diagnosed by a qualified medical professional.
  • an au pair whose service will help prevent a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or a ward of the state of a medical or other public funded institution.
  • a caregiver for a child whose parents are involved with providing medical care to COVID-19 patients or performing medical research at U.S. facilities to help the nation combat this pandemic.
  • an participant in an exchange program conducted according to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any U.S. federal, state, or local government entity that's meant to promote U.S. national interests; on condition that the agreement or arrangement was in effect prior to the proclamation.
  • an intern or trainee on a U.S. government agency-sponsored program (with a program number that starts with "G-3" on Form DS-2019), if the exchange visitor will be hosted by a U.S. government agency and the program supports the United States's immediate and continued economic recovery.
  • a specialized teacher in an accredited educational institution (with a program number beginning with "G-5" on Form DS-2019), who will teach full time, including a substantial portion in person, in a publicly or privately operated primary or secondary accredited educational institution. The applicant must also show an ability to make a specialized contribution to the education of U.S. students. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach the assigned subjects in that language.
  • a participant in an exchange program that fulfills critical and time-sensitive foreign policy objectives.

L-1 Possible National Interest Exceptions

The DOS will consider making an exception if the L-1 applicant plans to travel as a public health or healthcare professional or a 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 people traveling to the U.S. alleviate the secondary effects of the COVID-19 pandemic.

H-4, L-2, J-2 Possible National Interest Exceptions

The DOS will consider making an exception if H-4, L-2, or J-2 applicants will accompany or follow to join their spouse or parent who is a a principal visa applicant and who is not subject to Proclamation 10052 (including those who were themselves granted a national interest exception).

This exception can also be made for derivative applicants in cases where the principal is currently in the United States or has a valid visa.

Immigrant Visa Applicants' Possible National Interest Exceptions

In addition to the nonimmigrant categories outlined above, the DOS may make an exceptions for applicants who might age out of their current immigrant visa classification (by turning 21 in a category meant for minor children) before the proclamation expires or within two weeks after that date.

If you believe you might fit one of the above national interest exceptions, the DOS suggests you request a visa application appointment at your nearest U.S. embassy or consulate. At the interview, the consular officer will decide whether you meet the criteria and can be granted a visa based on an exception.

Effective Date: July 22, 2020