By: Melissa Chavin, Attorney, and Claire Graham, Summer Intern

During the pandemic, President Trump issued four physical presence related Presidential Proclamations, in which he stated that foreign nationals with any physical presence in the immediately preceding 14 days in the UK, Republic of Ireland, European Schengen area, China, Brazil and Iran are restricted from entering the United States.[1]  No date when the travel restrictions will be lifted is set forth. Individuals who meet certain exceptions are still  allowed entry without visiting an unrestricted area for fourteen days prior to entry.  In a prior blog, we discussed explicit/ objective exceptions.[2]  In this blog, we are considering another exception that is less explicit or objective in nature, the national interest exception. 

National Interest Exceptions: Easy

Two categories of foreign nationals have been deemed by the USCIS and Department of State not to need a national interest exception, or to be documentarily qualified for travel.  They are:

Students

Students who have “continuing attendance” form I-20s or are returning students do not need national interest exceptions.  Students who have “initial attendance” Form I-20s or are new students at online only institutions are not permitted to enter the US.  They are likely not really being issued new I-20s by their institutions, and if they have them, they are being denied F-1 visas and denied entry to the US.  To protect students from such visa or entry refusals, schools are generally not issuing Form I-20s to new students at 100% online universities and colleges. 

Professional Athletes, League Managers and Coaches and their Dependents

Professional athletes, who compete in leagues, and their team leadership, as well as their essential staff and dependents, do not need national interest exceptions, under a May 22, 2020 memorandum from Department of Homeland Security Acting Secretary Chad Wolf.[3]  League representatives can write a note to confirm the person's status as someone exempt from the Presidential Proclamations.  Traveling athletes, team leadership and their staff and dependents should still get travel clearance from the Customs and Border Protection, if they have a visa.  They can follow instructions on the website of their nearest Embassy or Consulate to obtain a visa appointment, if they do not have a visa.[4]  Travel for league sports may be considered mission critical for US consulates.[5]  Leagues listed in the order include Major League Baseball, the National Basketball Association, the Women’s National Basketball Association, the Professional Golfers’ Association Tour, the Ladies Professional Golf Association Tour, the National Hockey League, the Association of Tennis Professionals, and the Women's Tennis Association.   Contact a US immigration lawyer, if you need assistance obtaining travel clearance as a professional athlete, relative of a professional athlete, or manage a team in league sports. 

National Interest Exceptions: Difficult

Business Travelers

Business travelers need a national interest exception (NIE), if they do not fit into one of the explicit exceptions.  Those who need national interest exceptions include travelers who negotiate contracts and meet colleagues on short visits using visa-free travel, as well as those traveling as E visa treaty traders or investors, and O-1 extra-ordinary ability workers.  Such travelers may not have the time or funds to spend fourteen(14) days in a nonrestricted country before entering the United States.  Business, employment or investor travelers need to make an argument that they are important for the US economy or supply chain, and have urgent need to travel to the United States.  A letter from a US company is useful.  The letter should explain the urgency of the planned visit, the nature of the business, and how the U.S. or this company will suffer a significant loss of opportunity without this travel.  To apply, the business traveler must contact their local American embassy or consulate.  After contacting them, they can also apply to the US Customs and Border Protection, where they are flying.  To make an argument to obtain a national interest exception as a business traveler, it is highly recommended to contact a US immigration lawyer, to put your best foot forward.   

Mourners at a Funeral

A foreign national may qualify for a national interest exception in the sad case of the death of an immediate family members (mother, father, brother, sister, child) in the United States.  They will need proof of the passing of their loved one and the date of the funeral, as well as evidence of the relationship.

Wedding Attendance/ Graduation Ceremonies/ Baby Deliveries in the US/ Tourism

In general, attending a wedding, graduation, or delivery of a baby will not be considered a good reason for a national interest exception to the travel restrictions.  Likewise, urgent tourism will not be an acceptable grounds.  

Medical Tourism

Medical tourists and their traveling companions (relatives or care givers) may obtain national interest exceptions.  They need to provide two medical doctor letters, one from the home country about the condition and why the care must be done in the United States, and one from the healthcare provider in the United States stating that they are prepared to treat the case.  They should mention the cost.  The medical tourist should provide proof of how they will pay for the treatment.  

For assistance in obtaining a national interest exception as a mourner or medical tourist, please contact a US immigration lawyer.

Footnotes

[1] Presidential Proclamations 9984, 9992, 9993, and 9996 are described in this Chavin Immigration Law Office news update “Caught Out Abroad as a US Lawful Permanent Resident during the COVID-19 Pandemic? Can I Re-enter the US?”  They include: the Schengen travel ban (March 11, 2020), the Brazilian travel ban (May 24, 2020), and Suspending Entry of Aliens (June 22, 2020).

[2] Id.

[3] Letterhead Memorandum of Chad Wolfe, Acting Secretary of the Department of Homeland Security, “National Interest Exemption from Presidential Proclamations 9984, 9992, 9993, and 9996 Regarding Novel Coronavirus for Certain Professional Athletes and Their Essential Staff and Dependents” (covering foreign nationals in the MLB, the NBA, the PGA Tour, the NHL, the ATP and the WTA).  US Department of State, Bureau of Consular Affairs, Visas: National Interest Exemptions for Certain Professional Athletes and their Essential Staff and Dependents (June 1, 2020).

[4] US Department of State, Bureau of Consular Affairs, Visas: National Interest Exemptions for Certain Professional Athletes and their Essential Staff and Dependents (June 1, 2020).

[5] Id.