News

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 new 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.  During the pandemic foreign nationals located in the UK, Ireland or Schengen areas have not been permitted to travel to the United States unless they fell into certain categories for exceptions.  Objective exceptions are 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 exist as well, but must be requested from a US consulate or embassy or authorized persons at the US Customs and Border Protection. Subjective exceptions are grouped into these baskets: humanitarian, public health response, national security, and economic.  The March 2, 2021 effects specifically the economic national interest exception.

The new policy’s intention is to reduce business travel.  Athletes, technical experts, and treaty investors will no longer qualify as easily for national interest exceptions to the physical presence based travel bans, as they did before March 2, 2021.  Those who qualified for prior national interest exceptions should not assume that they will qualify for national interest exceptions under the new guidance.  So, foreign nationals who are in the US on temporary residence visas should think hard before returning to Europe for a trip.  They may not be allowed back to the United States. 

The new guidance requires 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 will be the vital support element.  This is the biggest change in national interest exception adjudication guidance.  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 a request for a national interest exception.  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 in making an national interest exception request. 

National Interest Exception 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. 

National Interest Exception Questions Answered

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.”