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Banned or Not?: The National Interest Exception to the U.S. Immigration Ban

Categories: Immigration, US: COVID-19

For those hoping to enter the United States, particularly during a global pandemic, you’ll need to be up-to-date on the latest U.S. immigration policy and aware of the National Interest Exception to the U.S. Immigration Ban. As of the publishing of this blog, several Presidential Proclamations (“P.P.”) established restrictions on the entry of certain travelers from China, Iran, Europe, the United Kingdom, and Brazil into the United States.

The National Law Review reported in a recent article that on August 12, 2020, the U.S. Department of State issued guidance on scenarios that may qualify for a National Interest Exception (“NIE”) under Presidential Proclamation 10052 of June 22, 2020 (“Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”) and Presidential Proclamation 10014 of April 22, 2020 (“Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”). Citing economic disruptions caused by the COVID-19 pandemic, President Donald Trump issued the proclamations and temporarily suspended the entry of certain foreign nationals into the United States. Although both proclamations referenced exceptions for individuals “whose entry would be in the national interest,” formal guidance had not been released prior to that announcement.

Additionally, prospective travelers who have a valid non-immigrant visa stamp or ESTA authorization that was issued prior to the effective dates of P.P. 9993 (a proclamation that restricted travel to the United States for persons who were physically present in the European Schengen zone during the 14-day period prior to their attempted entry in the United States; effective 3/13/2020) and P.P. 9996 (a proclamation that added the United Kingdom and Ireland to the list of banned countries; effective 3/16/2020) or who are seeking to apply for a visa stamp or ESTA authorization may be eligible to apply for an NIE under such proclamations.

The U.S. State Department released the following standards delineating categories in which such NIE 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 NIE pursuant to P.P. 9993 and P.P. 9996 vary by U.S. consular post. Each U.S. consular post has its own unique procedures for requesting emergency visa appointments, routine appointments and NIE. The U.S. consular posts have the discretion to approve or deny such NIE requests and nonimmigrant visa applications.

If you are seeking to enter the U.S. and require counsel on how to do so in accordance with U.S. law or have received a block to entry, please contact our office for further legal guidance.