Obtaining a National Interest Exception for Presidential Proclamation 10014, Suspending Entry of Certain Immigrants
Dated September 9, 2020
On April 22, 2020, the president issued an executive order (PP 10014 hereinafter the “IV ban”), restricting entry of certain immigrants, with some exceptions, on the basis that they presented a risk to the U.S. labor market given the negative effects of the COVID-19 pandemic on the U.S. economy. In contrast to the COVID-19 health related travel restrictions issued earlier in the year with regard to China, Iran, the Schengen Area countries, Ireland, the UK and Brazil, which continue in effect unless affirmatively lifted, the IV ban’s restrictions were initially valid for 60 days then extended through December 31, 2020, when they will expire unless affirmatively extended. (See PP 10052)
The IV ban does not apply to individuals who were—
- Present in the U.S. on April 23, 2020,
- Possessed a valid immigrant visa on April 23, 2020, or
- Who apply for entry to the U.S. on a valid travel document.
The following classes of individuals are further excepted from the IV ban’s restrictions—
- U.S. lawful permanent residents
- Physicians, nurses and healthcare professionals who will perform medical or other research to combat COVID-19 or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, and their derivative spouse and minor dependents
- EB-5 investors
- Spouses of U.S. citizens
- Minor children of U.S. citizens and prospective IR-4 or IH-4 adoptees
- Individuals who will further U.S. law enforcement objectives
- Members of the U.S. armed forces and their spouses and children
- SI and SQ Special Immigrants, and
- Those whose entry would be deemed “in the national interest.”
- Children who would age out of eligibility for a visa due to PP 10014 and PP 10052
Frequently Asked Questions concerning PP 10014 can be found here.
Department of State view that 212(f) authority extends to visa issuance
Since INA 212(f) confers the president with authority over “entry”, many AILA members have inferred that the IV ban should not restrict U.S. consulates from issuing immigrant visas. At this year’s virtual AC20 DOS Open Forum the Director of Legal Affairs at the Visa Office rejected such an interpretation and expressed the State Department’s longstanding view that presidential authority over entry in INA 212(f) extends to visa issuance. Consistent with that interpretation, U.S. consulates will not issue any immigrant visas subject to the IV ban while it remains in effect, absent an applicable exception. As a practical matter, unless an applicant can demonstrate that s/he is exempt from or may be eligible for an exception to the IV ban, they will not likely be conferred an IV appointment at a consular post. AILA is challenging the State Department’s position in connection with recently filed litigation.
Obtaining an immigrant visa (IV) appointment
AILA members with clients who are exempt from the IV ban or qualify for an exception should contact the post directly if the NVC has already transferred the file to post to request that the case be scheduled for interview. AILA has created a spreadsheet with public facing email addresses of DOS consular posts. If the file it not yet at post, attorneys should contact the National Visa Center (NVC). In either case, the attorney should clearly demonstrate with facts why the client falls outside the scope of the IV ban or is eligible for an exception. Attorneys should not expect that the post and/or NVC have a mechanism for determining that their clients are either exempt from the IV ban or are eligible for an exception. Unless attorneys proactively make note of their clients’ eligibility to receive an immigrant visa notwithstanding the IV ban and advocate on their behalf, it is unlikely that their clients will be scheduled for interviews while the IV ban remains in effect. Clients found eligible for an exception would generally qualify as “mission critical” such that they can obtain a visa appointment even if the post is not currently open for routine visa processing.
Exception for aging out children
A proclamation issued on June 22, 2020 (PP 10052 hereinafter the “NIV ban”) specifically permits children who will age out while PP 10014 is in effect or within two weeks thereafter (currently by January 15th) to qualify for a national interest exception. Internal State Department guidance obtained in litigation discovery clarifies that the only children who are eligible for the national interest exception based on aging out are those who would completely age-out while the proclamation is in effect or within 2 weeks thereafter and who are ineligible for CSPA protection. See PDF page 48, #4 of DOS cables received in litigation discovery currently posted on AILA’s website.
Impact of the IV ban on the FY2020 DV Lottery
By statute, DV applicants must obtain their immigrant visas during the fiscal year in which they won the lottery or they will lose eligibility to immigrate based on that fiscal year’s DV selection. As a result of the IV ban, attorneys with clients selected in the FY2020 Diversity Visa (DV) Lottery have been unable to obtain their immigrant visas to date. On September 4, 2020, the U.S. District Court for the District of Columbia granted preliminary relief in part in Gomez, et al., v. Trump, et al., a lawsuit filed by AILA and partners challenging PP 10014 and 10052.
The court found that the plaintiffs, including those in three related lawsuits, are likely to succeed on their claims related to DOS’s non-processing of 2020 diversity visa (DV) applications. The Court ordered the State Department to immediately undertake good-faith efforts to expeditiously process and adjudicate, issue, or reissue visas for DV-2020 diversity visa applicants and their beneficiaries by the September 30, 2020 deadline. More information and a copy of the decision can be found here.
Interplay with the COVID-19 health related bans
Keep in mind that even if your client qualifies for an exception under the IV ban, if s/he has been present in a country subject to a COVID-19 health related ban (i.e., China, Iran, Schengen Area countries, Ireland, UK and Brazil, see footnote 1) within the past 14 days, they will also need to establish an exception under that ban in order to be conferred an IV interview or for the immigrant visa to be issued.
Members can find more information on the IV and NIV bans on AILA’s “Resources Related to Presidential Proclamations Temporarily Suspending Entry of Certain Immigrants and Nonimmigrants into the United States” page. This page includes copies of the proclamations, summaries, FAQ documents, and relevant information provided by federal agencies and gathered throughout litigation.