The Department of State suspended routine visa services in March 2020 due to the global pandemic. Since March, numerous travel restrictions and presidential proclamations have limited travel and visa eligibility globally. In July, the Department of State announced that Embassies will be slowly resuming visa services. The resumption of visa services is on a post by post basis, and Embassy processing will not be close to pre-pandemic levels due to limited staffing and a large backlog of applications. Visa applicants should be prepared for additional delays in visa processing as the Department of State gets up to speed in processing applications. As individual Embassy and Consulate processing varies significantly be sure to review specific Embassy operating status regularly as they update often: https://www.usembassy.gov/
National Interest Exception
The Covid19 travel restrictions enacted by Presidential Proclamations that began in January 2020 continued to expand as the extent of the Covid19 pandemic became known. The restrictions on entry now cover numerous countries including: the EU (the Schengen area), the United Kingdom, Ireland, Brazil, China and Iran. The travel restrictions suspend travel to the United States from any foreign national who has been physically present in one of the designated areas immediately preceding their arrival in the United States. This restriction applies to individuals who connect through a designated country or even have a connecting flight through the United States.
The restrictions enacted by the Proclamations include certain exceptions, including exceptions for “any alien whose entry [into the United States] would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.” This exception has been deemed the “National Interest Exception” or NIE. The ability to determine NIE eligibility was vested in Consular Offices under Presidential Proclamation 10052. Department of State guidance on the NIE has come from individual Embassies or consular posts. From various sources, the following general rules for NIE eligibility for nonimmigrants have been determined:
- Students with currently valid visas do not need to seek an NIE to travel. Students who need to obtain a student visa should automatically qualify for an NIE.
- Public Health Professionals, researchers or healthcare professionals working on Covid-19 issues or areas of substantial public health benefits should qualify for an NIE.
- Academics traveling on J visas as Professors and Researchers should qualify for an NIE.
- Investors and traders have a harder path to an NIE and should be prepared to demonstrate their travel will generate a substantial economic impact. Essential managers may also qualify.
- Professional Athletes not covered under other exceptions, who wish to enter to participate in a major sporting event should qualify for an NIE.
- Finally, individuals who can demonstrate their travel will provide a substantial benefit to the United States economy should be able to request an NIE. This exception potentially opens travel for O1, H1B, L1, and other employment-based categories provided a successful NIE application is made to the Embassy or Consulate.
National Interest Exceptions vary significantly by Consular post and are complex requests. Careful preparation of these requests is highly recommended, as well as obtaining significant supporting evidence. In addition, Customs and Border Protection application of NIE requests is also sporadic, and careful consideration on port of entry rules is advisable. As we navigate the reopening of Consular services worldwide it is vital to have a trusted advocate on your behalf.
For National Interest Exception advice and counsel, please contact Michael Freestone, Tully Rinckey’s Immigration Partner and Practice Chair at (202) 787-1900. To book a consultation, please click here.