U.S. State Department Announces New Guidance on National Interest Exceptions to U.S. Travel Ban

We are happy to announce that, on August 12, 2020, the U.S. State Department provided important guidance on U.S. travel that may qualify for a National Interest Exception to recent Presidential Proclamation 10052 (P.P. 10052).

Background:

On June 22, 2020, the President signed P.P. 10052, suspending the entry into the U.S. of certain foreign nationals who are deemed to present a risk to the U.S. labor market during the economic recovery following the 2019 novel coronavirus outbreak.  This suspension applies to certain applicants for H-1B, H-2B, L-1, and J-1 nonimmigrant visas and remains in effect through December 31, 2020.

P.P. 10052 includes exceptions, specifically including for individuals whose travel would be in the “national interest.”

The new U.S. State Department announcement is significant as it provides specific guidance as to when an impacted nonimmigrant visa applicant may qualify for a National Interest Exception in the different visa categories.  The following is a non-exclusive list of some of the National Interest Exceptions that could apply to our business clients:

National Interest Exceptions for H-1B Nonimmigrants:
  • 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 substantial public health benefit.
  • Travel by applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the U.S.
National Interest Exceptions for L-1A Nonimmigrants:
  • 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 substantial public health benefit.
  • Travel by applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.
  • Travel by senior level executives or managers filing a critical business need of an employer meeting a “critical infrastructure” need. Critical infrastructure sectors are provided as including: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.
National Interest Exceptions for L-1B Nonimmigrants:
  • 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 substantial public health benefit.
  • Travel by applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.
  • Travel as a technical expert or specialist meeting a critical infrastructure need.
National Interest Exceptions for H-4 and L-2 Nonimmigrants:
  • Travel to accompany or follow to join a principal applicant who is the spouse or parent and who has been granted a National Interest Exception.

How to Apply for a National Interest Exception Under P.P. 10052?

If you believe that you are subject to P.P. 10052 and may qualify for a National Interest Exception, please contact us at your earliest convenience.  We will want to carefully analyze your particular situation to determine if you are subject to this proclamation and if you could qualify for such an exception.

If you are subject to this proclamation and if a viable request can be made for a National Interest Exception, it would generally be necessary to request an emergency visa appointment at the U.S. consular post and then provide specific details to the U.S. consular post as to why you would qualify for a National Interest Exception. Certain posts are also opening up appointments at this time for L visa applicants.

As U.S. consular posts begin to re-open, each U.S. consular post has its own unique procedures for requesting emergency visa appointments, routine appointments and National Interest Exceptions.

The U.S. consular posts have the discretion to approve or deny such National Interest Exception requests and nonimmigrant visa applications.

National Interest Exceptions Under Presidential Proclamations 9993 and 9996 (P.P. 9993 & 9996): Schengen Area / U.K. / Ireland Travel Bans.

In addition to the above development, we been highly successful in recent weeks in securing National Interest Exceptions under P.P. 9993 (Schengen Area Travel Ban) and P.P. 9996 (U.K. / Ireland Travel Ban).  These proclamations suspended entry into the U.S. as immigrants and nonimmigrants of all individuals who were physically present within the Schengen Area / U.K. / Ireland during the 14-day period preceding their entry or attempted entry into the U.S.

Prospective travelers who have a valid nonimmigrant visa stamp or ESTA authorization that was issued prior to the effective dates of P.P. 9993 (effective 3/13/2020) and P.P. 9996 (effective 3/16/2020) or who are seeking to apply for a visa stamp or ESTA authorization may be eligible to apply for a National Interest Exception under such proclamations.  In July, the U.S. State Department released standards delineating categories in which such National Interest Exceptions may be granted. These categories include:

  • Public Health: Travel as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g. cancer or disease research).
  • Students: All students, and their dependents, traveling to the U.S. on an F or M visa to pursue a full course of study or on a J visa to participate in an exchange program as a bona fide student.
  • Academics: All exchange visitors and their dependents traveling to the U.S. on J visas in the following categories: Professors, Research Scholars, Short Term Scholars, or Specialists.
  • Investors: Travel in connection with investment or trade in the U.S. economy that generates a substantial economic impact, including investors and treaty-traders on E visas and the senior-level employees who provide strategic direction or expertise essential to the success of the investment, and their dependents.
  • Economic: Temporary travel that provides a substantial economic benefit to the U.S. economy, including:
    • Technical experts and specialists to install, service, maintain, or receive training for vessels, machinery and other specialized equipment used by U.S. and foreign firms with a substantial investment in the United States. Travel is temporary in nature and for a defined period of time.
    • Senior-level managers and executives, and their dependents, who provide strategic direction necessary for the success of the company or venture.
    • Professional athletes, dependents, and essential staff who enter the United States to participate in major sporting events, which bolster the U.S. economy.

Procedures for applying for National Interest Exceptions pursuant to P.P. 9993 and P.P. 9996 vary by U.S. consular post.

Generally, if subject to such proclamations and if an individual has a valid visa stamp or ESTA authorization, such exceptions may be applied for by email.  When not applicable, an emergency appointment may be requested at the U.S. consular post for consideration.  U.S. Customs and Border Protection may also adjudicate such exception requests in certain circumstances.

If a National Interest Exception is approved, the individual may travel to the U.S. on either a valid nonimmigrant visa stamp or ESTA authorization, noting, however, that the exception will remain valid for only 30 days from the date of approval and the visa stamp / authorization will be valid for only a single entry into the U.S.

Alternatively, CBP at certain airports have been open to reviewing requests for admission and National Interest Waivers.

Should you have any questions regarding this U.S. State Department guidance, the referenced Presidential Proclamations, National Interest Exception requests, or nonimmigrant visa processing at U.S. consular posts abroad, please do not hesitate to contact AGG lawyers Teri A. Simmons, Stephen P. Pocalyko, Montserrat C. Miller or William G. Adams.

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