Obtaining NIV Appointments and Applying for National Interest Exception Waivers for Travelers from the Schengen Area, United Kingdom, and Ireland

Obtaining NIV Appointments and Applying for National Interest Exception Waivers for Travelers from the Schengen Area, United Kingdom, and Ireland

Dated September 17, 2020

AILA’s DOS and CBP Liaison Committees1

AILA’s Department of State Liaison Committee provides the following advisory discussing the process for obtaining a nonimmigrant visa (NIV) appointment and applying for a national interest exception under the Schengen, U.K. and Ireland travel bans.

Members should note that the first part of this advisory concerning obtaining an NIV appointment applies to all posts regardless of region. The second section discusses National Interest Exceptions (NIEs) and provides specific guidance concerning NIEs for travelers from the Schengen, UK, and Ireland area. While this section is specific to NIEs under these bans, it may be helpful in making determinations or advising clients concerning other country specific bans as well.

I. Obtaining an NIV appointment

A. Background Concerning Suspension of Routine Visa Services

On March 2020, the Department of State (“DOS”) suspended routine visa services worldwide due to the COVID-19 pandemic. DOS announced on July 14, 2020 that U.S. Embassies and Consulates would be able to commence a phased resumption of routine visa services as global conditions continue to evolve. The announcement stated that consular posts would be able to resume routine visa services on a post-by-post basis, without a definite timeline for when each mission will resume what specific service, or when each mission will return to processing at pre-COVID levels. On August 25, 2020, DOS announced that it temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a NIV in the same classification.2 Many posts have shared updates concerning their resumption of certain visa services. Members are encouraged to review those posts’ websites.

B. Obtaining an Appointment

Despite the fact that posts have begun to resume routine visa services, the level of services offered will vary depending on the post, its available resources, and any relevant COVID restrictions it and the host country have implemented. Even if COVID-19 related travel restrictions do not apply, the services offered by U.S. Embassies and Consulates may be limited.

In order to successfully schedule a visa appointment and be eligible for subsequent visa issuance, attorneys must proactively demonstrate their clients’ eligibility under each of the respective proclamation, including any eligibilities for a specified exemption, exception or National Interest Exception (“NIE”). Clients found eligible may be able to obtain a visa appointment even if the post is not currently open for routine visa processing.

First, AILA members should contact the post directly to first check whether post is open, and if open, to confirm nonimmigrant visa (“NIV”) scheduling procedures, including how to obtain an NIE waiver and eligibility/process requirements. AILA’s DOS Liaison Committee has compiled a list of public facing email addresses for posits around the world. Procedures will vary dramatically by post and are constantly evolving. For this reason, it is a best practice to double check prior to initiating the visa appointment process. AILA’s RDC and LACC chapters have compiled a regularly updated spreadsheet detailing consular post operations during the COVID-19 outbreak.

Next, when requesting a visa appointment and seeking to demonstrate eligibility for visa processing, the attorney should clearly demonstrate with facts why the client falls outside the scope of the NIV ban or is eligible for an exception. Attorneys should not expect that the post has an established mechanism for determining that their clients are either exempt from the NIV ban or are eligible for an exception. Likewise, attorneys should not assume that if the visa appointment is granted that the NIE will be accepted or that the visa will be issued.

II. National Interest Exception - 212(f) Waiver

A. Background:

Beginning on January 31, 2020, the President issued several presidential proclamations to implement restrictions on entry to the U.S. from certain countries (Schengen Area, Ireland, UK, Brazil, China, & Iran) based on public health and economic considerations related to the COVID-19 pandemic. Each of the Presidential Proclamations includes an exception for “any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.”

Specifically, on March 11, 2020, suspension of entry of both immigrants and nonimmigrants from Schengen Area countries3 was announced in Presidential Proclamation 9993 (or PP9993). On March 14, 2020, this suspension was expanded to include immigrants and nonimmigrants from the United Kingdom and Ireland, per Presidential Proclamation 9996 (or PP9996).

In connection with these proclamations, please also bear in mind the following:

  • The Presidential Proclamations suspend travel to the U.S. for any foreign nationals who has been physically present in the Schengen Area, UK, Ireland, China and Brazil within the immediately preceding 14 days prior to their arrival in the United States.
  • The suspension also applies to transiting through a U.S. airport.
  • Transiting a country covered by any COVID-19 related Presidential Proclamation, even without exiting the airport, also counts as physical presence within that country.

B. National Interest Exception (NIE) - Authority:

Although these COVID-19 related travel restrictions remain in place, Presidential Proclamation 10052 issued on June 22, 2020 restricting entry of certain nonimmigrant visa classifications, as amended on June 29specifically indicates that consular officers can, in their discretion, determine whether any exceptions, including those in the national interest, exist in a particular case.

Further, although the various health-related proclamations restricting travel from China, Iran and Brazil also provide for a general national interest exception at the discretion of DOS, DHS or their designees, it should be noted that the State Department has only provided specific guidance and information on NIEs for certain travelers from the Schengen Area, UK, and Ireland.

The State Department announcement further clarifies the procedures for students, business travelers, investors, academics, J-1 students, and treaty traders from the Schengen Area (including the UK and Ireland), to include the following:

  • Students:
    • Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an NIE to travel.
    • Students seeking to apply for new F-1 or M-1 visas should check the current visa services being offered at the nearest embassy or consulate. Applicants found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel.
  • Business travelers, investors, academics, J-1 students, and treaty traders:
    • These travelers who have a valid visa or valid ESTA authorization that was issued prior to PP 9993 or 9996’s effective date or who are seeking to apply for a visa, and believe they may qualify for a national interest exception (NIE) should contact the nearest U.S. embassy or consulate before traveling.

Per a post from the U.S. Embassy in Germany, the following categories of travelers may now qualify for national interest exceptions (NIEs) under Presidential Proclamations 9993 and 9996, which has suspended routine travel from the Schengen Area, United Kingdom, and Ireland to the United States:

  • 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 United States 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 United States 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.

Finally, it should be noted that there are various other exceptions to the travel suspension proclamations for the Schengen Area, UK and Ireland including for immediate relatives of U.S. citizens and LPRs, as well as certain professional athletes. These exceptions are not the subject of this practice advisory.

C. How to Request an NIE:

Without specific guidance from DOS, in order to successfully obtain an NIE 212(f) waiver, it will require a level of advocacy and creativity. If your client is applying for a visa, the NIE waiver request must be made concurrently at the same Consulate/Embassy after securing a scheduled NIV appointment.

Typically, your client must schedule an appointment and pay the required visa fee and then request an expedited visa appointment including some showing the entry will aid in the immediate recovery of the U.S. Economy, create U.S. jobs, or for purposes related to humanitarian travel, a public health need, or national security. The process and evidentiary requirements, as well as outcome, will vary from post to post. Consular officers have authority to approve most NIE requests and State has provided relevant guidance to posts.

It is important to note, AILA members are reporting NIE waiver requests are not being adjudicated or reviewed in a consistent manner, with guidance and outcome varying from post to post.

For this reason, it is best practice is to first check with the specific post on information/instructions regarding the NIE process and evidentiary requirements; and then second, prepare your client prior to their visa interview with information and supporting documents in requesting an NIE. Likewise, your client should be prepared to present an argument for dependent visas to also be issued simultaneously perhaps explaining the hardship of separating the family during a pandemic, health issues, inability to travel due to business obligations/employment, etc.

Due to inconsistent adjudications, some members have reported that post did not accept or require the NIE waiver request during the visa interview and yet, the visa was issued. Members should check the visa stamp/foil to ensure the NIE language is annotated on the visa. If, on the other hand, the visa is issued without a specific NIE update in government databases or otherwise annotated with the NIE approval, members should prepare clients that they may have potential problems boarding their flights to the U.S., or at the POE with US Customs and Border Protection (CBP). In that case, you may consider filing a NIE 212(f) waiver with the consulate after the visa issuance.

As of the date of this practice advisory, the following Schengen Area (including UK and Ireland) countries have posted specific information/instructions regarding the NIE process on their public-facing website:4

Members are reminded to also refer to the member-driven spreadsheet detailing consular post operations during COVID-19 for unofficial member intelligence on what they are experiencing at various posts.

D. Limitations of National Interest Exceptions for Travel

Even if travelers are approved for a visa for the full-validity period, however, the NIE waiver to travel is valid only for a single entry to the U.S. within 30 days of the date of visa issuance. An individual who departs the U.S. and wishes to return must be reassessed for a new NIE. Attorneys should prepare clients to immediately check the visa stamp upon issuance and to travel to the U.S. during the 30-day NIE validity period.

An individual who departs the United States and wishes to return must be re-assessed for a new NIE waiver through DOS or CBP. All clients should be reminded that their admission to the U.S. still remains subject to a determination by CBP officers at ports of entry.

Effective September 14, 2020, travelers will no longer be required to enter the U.S. through one of 15 airports specifically designated for international arrivals previously provided by DHS. AILA notes that DHS ending airport health screenings, does not lift the country specific COVID travel bans. For more information on the end of the requirement to enter through the 15 designated airports, please see AILA's Practice Alert.

E. Travelers with Valid Visas or Valid ESTA

Students with valid F or M visas and a valid I-20 form may travel to the United States without notifying DOS or CBP to request an NIE waiver.

All other travelers (with the exception of A and G visas) that already have valid visas must receive approval for a NIE waiver prior to travel if they are subject to the COVID-19 related travel Presidential Proclamations restricting travel from Schengen EU, including the UK and Ireland. As stated earlier, members are encouraged to contact the relevant post at which the NIE request will be made in order to ascertain any post-specific requirements or procedures that should be expected.

In some limited instances, if your client is already in possession of a valid visa or ESTA and believe they qualify for an NIE, some members have reported success with requesting the NIE directly from CBP. The CBP Liaison Committee has provided guidance on local procedures for NIE requests at CBP ports and preclearance locations due to COVID-19. The procedures vary by port.

AILA members are encouraged to send updated information or information not currently reflected for a particular port or preclearance location to reports@aila.org, subject line “NIE Request Procedures.”

It has been reported that the ESTA system may automatically cancel the traveler’s ESTA if the flight to the U.S. is scheduled during the 14-day stay in a third country. In order to maintain one’s ESTA, it is advisable to schedule a flight after the 14-day stay in a third country. This is presumably because the carrier will report an attempted entry during the 14-day period in order to avoid fines.

F. Travelers from Other Countries with Health-related Travel Restrictions

As mentioned previously, although the various health-related proclamations restricting travel from China, Iran and Brazil also provide for a general national interest exception granted at the discretion of DOS, DHS or their designees, it should be noted that at present, the State Department has only provided specific guidance and information on NIEs for certain travelers from the Schengen Area, UK, and Ireland. Therefore, this practice advisory only covers NIEs for this geographic area.

III. Next Steps

AILA will continue to monitor issues concerning NIEs and consular post operations. AILA members seeking more information concerning updates on NIEs and the country-specific bans are encouraged to reference AILA’s Coronavirus Resource Center.

1. Special thanks to AILA member and DOS Committee member Fuji Whittenburg for her work on this advisory.

2. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver. The expiration period has been temporarily extended to 24 months. This policy is in effect until December 31, 2020.

3. The Schengen Area comprises 26 European states: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

4. Attorneys must check with each consular post directly as procedures vary and are changing on a daily basis based on country conditions and other factors.

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