State Department issues guidance on national interest waivers

The U.S. Department of State has issued some preliminary guidance on the application of the national interest waiver to foreign nationals from countries that are subject to a COVID-19-related travel ban.

Since late January, the Administration has issued seven proclamations directly or indirectly related to the COVID-19 pandemic. Five of the proclamations generally prohibited entry into the United States by persons who were in COVID-19 “hot spots” within 14 days of their planned entry into the United States. The affected countries are the People’s Republic of China, Iran, the United Kingdom, Ireland, Brazil, and the 26 Schengen nations (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland).

The Administration issued two additional proclamations that barred the entry of immigrants (Proclamation 10014) and nonimmigrant holders of H-1B, H-2B, certain J-1, and L-1 visas (Proclamation 10052).

We have reported on these proclamations here, here, and here.

All of these proclamations make exceptions for foreign nationals whose admission to the United States is in the national interest. Thus, the new guidance on the national interest exemption may provide relief to some individuals covered by the proclamations.

The proclamations delegate to the Secretary of State and the Secretary of Homeland Security, in consultation with each other (and the Secretary of Labor with respect to Proclamation 10052), the responsibility to determine who is eligible for a national interest waiver. Some of the proclamations say that the national interest waiver would apply to an individual coming to the United States at the invitation of the government -- either in connection with containment or mitigation of COVID-19, or to further important law enforcement objectives.

The new guidance

First, the guidance says that students from the Schengen area and the United Kingdom and Ireland who have valid F-1 and M-1 visas, and their dependents, may travel to the United States while the health-related proclamations are in effect. They “do not need to seek a national interest exception to travel,” according to the State Department. It appears that the State Department has made a blanket determination that these students (and their dependents) qualify for national interest waivers.

Moreover, national interest waivers continue to be granted “for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, health response, and national security.” Although this language does not mention economic considerations as part of the national interest exception, recent indications from the State Department and our firm’s experience lead us to believe that economic interests also can be the basis for a national interest waiver.

Regarding national interest waivers for nonimmigrant categories in Proclamation 10052, the guidance provides examples of situations where the waiver may apply. Our experience has been that a wide range of situations can be presented to support a waiver request that the individual is performing essential services that benefit the national interest.

For H-1B visa holders, the guidance says that waivers can apply in these situations:

• “For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).”

• “Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.”

For H-2B visa holders, the guidance says that waivers are available in this situation:

• “Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.”

For J-1 exchange visa holders, waivers are available in these situations:

• “Travel to provide care for a minor U.S. citizen, [lawful permanent resident], or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.”

• “Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.”

• “Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United State combat COVID-19.”

• “An exchange program conducted pursuant to [a Memorandum of Understanding], Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.”

• “Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with ‘G-3’ on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.”

• “Specialized Teachers in Accredited Educational Institutions with a program number beginning with ‘G-5’ on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A ‘specialized teacher’ applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.”

• “Critical foreign policy objectives: This only includes programs where an exchange visitor [sic] participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.”

For L-1 visa holders, waivers are available in this situation:

• “Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.”

For holders of H-4, L-2, and J-2 visas waivers are available as follows:

• “National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to [Presidential Proclamation] 10052 (including those who have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.”

(Emphasis added.)

Procedure to apply for national interest waivers

The State Department is in the process of reopening its consular services at its embassies and consulates. Available services will depend on local conditions. The website of the applicable embassy or consulate provides detailed instructions on the services that are currently available and how to request a visa appointment.

Information and documentation in support of the national interest waiver request should be presented at the interview. A decision will be made at the time of interview.

Even if consular assistance is sought, unless a decision occurs quickly, it is also advisable for foreign nationals to apply for a national interest waiver via a new procedure (where available) arranged between U.S. Customs and Border Protection and the American Immigration Lawyers Association. There are six airports – Boston, JFK, Miami (if consular assistance is sought first), Newark, Chicago/O’Hare and LAX – through which an individual can apply for a national interest waiver under the Proclamation “Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus.” (The applications can be submitted from abroad, or through an attorney in the United States.)

Via the Boston airport, for example, requests also can be made for international flights to airports in Connecticut, Maine, Massachusetts, New Hampshire and Rhode Island. It is recommended that the national interest waiver request be filed approximately 14 days before the travel would take place. If approved, Customs and Border Protection in Boston will communicate with the airline’s Regional Carrier Liaison Group to advise it that it is acceptable to allow the individual, otherwise subject to the Presidential Proclamation, to board the flight to the United States

Upon landing, approved individuals are subject to the Centers for Disease Control and Prevention COVID-19 screening process.

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