(Updated November 10, 2021).  This article contains concepts useful to request a visa interview during a time of scarce visitor visa interviews. National interest exceptions are no longer needed to travel to the United States.  Consular officers from Berlin (Christel) and Frankfurt (Kelsey) presented via Zoom at an event sponsored by the American Chamber of Commerce in Germany (“AmCham Germany”) March 22, 2021, to explain the  national interest exception guidance published by the US Department of State on March 2, 2021 [1].

The two Vice Consuls presented key changes in the national interest exception criteria introduced March 2, 2021.  During the pandemic foreign nationals located in the UK, Ireland or Schengen areas were not been permitted to travel to the United States unless they fell into certain categories for exceptions.  Objective exceptions were granted for students, spouses of US Citizens, parents of US citizen unmarried children, lawful permanent residents and their spouses and children, diplomats and crew members.  Subjective exceptions existed as well, but had to be requested from a US consulate or embassy or authorized persons at the US Customs and Border Protection. Subjective exceptions were grouped into these baskets: humanitarian, public health response, national security, and economic.  The March 2, 2021 guidance effected the economic national interest exception.

The policy reduced business travel.  After November 8, 2021, this same policy will be used to parse through visa applicants who should be granted a priority appointment.   Visa appointments will remain scarce until 2023.  So, foreign nationals who are in the US on temporary residence visas that are expired or expiring should take legal advice before returning to Europe for a trip. 

The March 2, 2021 guidance required that the traveler be coming to the United States to provide vital support for critical infrastructure.

Critical Infrastructure

There are 16 types of critical infrastructure outlined on the website of the Cybersecurity & Infrastructure Security Agency (CISA).[2]  There are also a lot of sub-categories.  Critical infrastructure is thus so broad that this element of the new guidance will not be a significant hurdle for business travelers.

Vital Support

The challenging element an any visa appointment request will be the vital support element.  Vital support is given by people who sustain the supply and production chain.  They may provide safety training, installation, acquisition, and maintenance services.  They may also be the people who do inspections of physical items to close on major sales.  Two examples were given during the presentation.  (1) Someone needing to inspect an airplane before closing on an airplane purchase, and (2) A Norwegian specialist in salmon needing to come to inspect a farming facility for urgent health and safety of fish.  There should be some urgency for the need to travel.  The travel should have a hands-on inspection component.  Senior executives coming to observe operations or hold meetings will be turned away.  Such meetings will be considered routine operations travel, and will get a “no” on their national interest exception requests.

Vital Support vs. Job Retention/ Job Creation

Vital support is more important than job creation in making any request.  Major investment that will protect or create jobs is important and can rise to the level of being vital support for critical infrastructure.  But otherwise, use job creation/ job retention as a secondary argument.

Request Procedure

To make the request, applicants should have a support letter stating the critical infrastructure section in which they work, a description of the vital support that the employee provides, and the qualification of the employee, if appropriate (likely in the form of a CV).  They should send these requests as appropriate for the embassy involved.  For the embassies and consulates in Germany, this will be by email. The consular officers consider this a document-based evaluation.  The method of request procedure will vary with each embassy or consulate.  The London US Embassy takes emails but prefers requests made on their appointment setting account.  This account is based on the Yatri application, so the account is sometimes called the "Yatri account."

Questions Answered March 22, 2021

The consular officers answered some Q & A at the end of their presentation.   The following was clarified: 

1/ Dependents Need a Humanitarian National Interest Exception.  Spouses and children of visa holders who qualify under the vital support criteria will need a separate humanitarian exception supporting family unification to qualify for a national interest exception. 

2/ Apply Only from Outside the United States.  One needs to be abroad in order to request a national interest exception.  The consulates will not consider an national interest exception request when an applicant is still in the United States.

3/ Job Creation / Retention Based National Interest Exception Requests.  National interest exception requests that are based on creation or retention of jobs will be considered, but the decisions on them are ultimately made centrally in Washington, DC.  They will take longer to be granted.  Advocates should document the job creation or retention with specificity and lots of supporting evidence.

4/ Job Creation Not Enough for E-2 Visa Holders.  Creation of jobs will not be enough to qualify an E visa holder under the new national interest exception criteria. 

5/ J Visa Interns.  J visa holders coming to do internships that do not have an academic element (e.g., research scholars or students) will need to meet the vital support criteria.

6/ Temporary Refusal for Visa Applicants. Any visa applicant who is otherwise qualified, but who does not meet the national interest exception criteria of vital support, will be temporarily refused.  The German US consular officers insisted that they would not consider an applicant's willingness to travel to a country outside of the travel-restricted areas as a basis to issue a visa without a national interest exception. 

7/ No Future Consequences of an NIE Request Denial.  A denial of a national interest exception request will not have future repercussions for visa applications or visa free travel, but the consular officers asked that requestors not make repeated requests if their circumstances have not changed.

8/ National Security and Government Officials' Travel to the United States. Interestingly, the consular officers said that municipal government representatives who wanted to travel to the US for twinning cities diplomacy may apply for an NIE under the national security exception.  Advocates could argue that this a relevant government priority. 

9/ The E-2 Applicant's Written NIE Request.  An applicant for an E-2 visa should bring his lawyer’s national interest exception request to their interview.  A vital support argument is best made by the lawyer, since the employee may not know how their work fits in to provide vital support to critical infrastructure.    The lawyer will use the specific language that the consular officers are looking for to describe the specialized skills of the applicant and the vital nature of their project. 

10/ CBP Has the Final Say.  One should travel to the entry point of the United States with all the documentation used to request the national interest exception.  The US Customs and Border Protection officers will have the final say on whether a traveler is allowed into the United States.  The CBP officers may have additional information that consular officers do not know.

11/ Tourism/ Non-Essential Travel.  Do not travel on an economic based national interest exceptions to pursue non-essential travel purposes.  The CBP may refuse entry on an national interest exception, if they believe that the traveler is coming for tourism. 

12/ H-1B and L Visa Holders.  Though Presidential Proclamation 10052 concerning H-1B and L visas expires at the end of March 2021, those visa holders will need to be evaluated under the physical presence travel bans and this new economic national interest exception criteria of vital support for critical infrastructure. 

Footnotes

[1] National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland, March 2, 2021.

[2] Cybersecurity & Infrastructure Security Agency (CISA): Critical Infrastructure Sectors.  “There are 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.”