U.S. State Department Releases Guidance on "National Interest Exception" to Entry Bans
National Interest Exception for Nonimmigrant Worker Entry Ban
The State Department has provided some limited guidance
on the "National Interest Exception" (NIE) to the nonimmigrant worker entry ban. It appears that the State Department has established fairly attenuated interpretations of the NIE as you can see below.
H-1B Visa Exceptions:
- For 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 (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
- Travel supported by 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 would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
L-1 Visa Exceptions:
- 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. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
H-2B Visa Exceptions:
- 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. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
J-1 Visa Exceptions:
- Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.
- Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
- Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
- An exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
- Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with "G-3" on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
- Specialized Teachers in Accredited Educational Institutions with a program number beginning with "G-5" on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.
- Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.
H-4, L-2, and J-2 Dependent Visa Exceptions:
- National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to P.P. 10052 (including those that have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.
Immigrant Visa Exceptions:
- Applicants who are subject to aging out of their current immigrant visa classification before P.P. 10014 expires or within two weeks thereafter.
National Interest Exception for Schengen/UK/Ireland Entry Bans
The State Department has also provided some limited guidance
regarding the NIE for the entry bans currently in place for those who have been present in the UK, Ireland, or Schengen area in the past 14 days. The guidance is quite broad so as to allow each consular post to set its own specific procedures.
Here are some key takeaway points, however, that will likely apply regardless of the post’s specific procedures:
- Students traveling from the Schengen Area, the UK, and Ireland who already hold valid F-1 and M-1 visas do not need to seek an NIE to travel.
- Only F-1/M-1 students (who do not already hold a valid visa), J-1 researchers, E-2 investors, or B-1 business travelers can even apply for the NIE from the Schengen/UK/Ireland travel ban.
- Although travelers approved for an NIE exception will be issued full validity visas, unless the traveler is a student or academic researcher, the exception is valid only for 30 days from the date of approval and is valid only for a single entry to the United States. An individual who departs the United States and wishes to return must be re-assessed for a national interest exception (if not a student or academic researcher).
- Even once a visa is issued pursuant to the NIE (or for those who already hold valid visas or ESTA authorizations, entry is authorized), admission remains subject to a determination by Customs and Border Protection officers at ports of entry and that they may be subject to a 14-day quarantine upon arrival. DHS requires travelers using an NIE waiver to fly into one of 15 specifically designated airports found here.
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