Travel and Visa Application Bans and the Current State of National Interest Exception Waivers

Beginning in February of 2020, then President Trump, issued several Proclamations that banned foreign nationals from entering the United States from certain countries with high rates of COVID-19 (the “Travel Ban”) unless they quarantined in a third country not subject to the Travel Ban for at least 14 days. This Travel Ban initially applied to China and was then extended to Iran, most of western Europe (the Schengen Area) and the United Kingdom and Brazil. Recently, President Biden extended the Travel Ban to South Africa. The Travel Ban applies to travel to the U.S. on any visa and under the ESTA visa waiver program. In addition, in June of 2020, then-President Trump issued a Proclamation that banned applications for certain new H-1B, H-2B, L-1 and J-1 visas (and their dependent family members) at U.S. Consulates abroad (the “Visa Application Ban”). More information on these Proclamations can be found on our website.

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While the Travel Ban has no expiration date, the Visa Application Ban is set to expire on March 31, 2021. Rumors are circulating that President Biden will end or limit both of these Bans in the near future – but for now they remain in place.

Both the Travel Ban and the Visa Application Ban include a provision allowing a visa applicant or traveler to the U.S. to request a waiver from the Ban based on the argument that their travel is in the “national interest” of the United States. There has been limited guidance from the U.S. government on how to establish eligibility for a National Interest Exception (“NIE”) waiver to the Travel Ban beyond showing that the travel is in the economic interest of the United States, will contribute directly to public health efforts amid the COVID-19 pandemic or will be in the interest of national security.

On March 2, 2021, the Biden Administration revoked earlier guidance that extended NIE waivers of the Travel Ban from the Schengen area, Ireland and the U.K. to include certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents. Under the March 2nd guidance, Travel Ban NIEs for the Schengen area and the U.K. are now available only to (i) foreign students coming to the U.S. in F-1 or M-1 student visa status, (ii) travelers coming to the U.S. to provide “vital support to critical infrastructure sectors”, (iii) academics, J-1 students, and journalists who have a valid visa in the appropriate class, an ESTA authorization, or who are seeking to apply for a visa, and believe they may qualify for a National Interest Exception and (iv) travelers seeking to enter the United States for purposes related to humanitarian travel, public health and response, and national security. The Department of State’s full guidance on the existing standard for NIEs from this area is available here.

In July of 2020, the U.S. State Department outlined the grounds on which NIE waivers of the Visa Application Ban can be requested. These grounds are detailed and complex and we provide below only a brief overview of the H-1B and L-1 rules – the full text of the these rules can be found here.

The following categories of people applying for an H-1B visa may obtain an NIE waiver from the Visa Application Ban:

  • Public health or healthcare professionals or researchers who are coming to the US to alleviate the effects of the COVID pandemic or to conduct medical research into any area of substantial public health benefit.
  • People who are returning to the U.S. in H-1B visa status to resume ongoing employment in the same position and with the same employer.
  • Technical specialists, senior-level managers and other workers whose travel is necessary to facilitate the economic recovery of the U.S. provided that they evidence at least 2 of the following 5 indicators: (i) the petitioning employer has an on-going need for their services as evidenced by a certified Labor Condition Application (an initial stage in the H-1B sponsorship process) (“LCA”) filed for their position after July 20, 2020; (ii) the applicant will provide senior-level or specialty services involving vital significant and unique contributions to an employer meeting a “critical infrastructure need” defined to include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems services.; (iii) the applicant will be paid a wage that exceeds the “prevailing wage” listed on their LCA by 15%; (iv) the applicant’s education, training and/or expertise demonstrate unusual expertise in their field; or (v) denial of the waiver will cause the U.S. employer financial hardship.

The following categories of people applying for an L-1A or L-1B visa may obtain an NIE waiver from the Visa Application Ban:

  • Public health or healthcare professionals or researchers who are coming to the US to alleviate the effects of the COVID pandemic or to conduct medical research into any area of substantial public health benefit.
  • People who are returning to the U.S. in L-1 visa status and who are seeking to resume ongoing employment in the same position and with the same employer.
  • In the case of an L-1A Manager/Executive visa applicant – The applicant is a senior-level executive or manager filling a critical business need with an employer that meets a “critical infrastructure need” (see this definition above) and the applicant meets 2 of the following 3 indicators: (i) the applicant is a senior-level executive or manager; (ii) the applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or (iii) the applicant will fill a critical business need for a company meeting a “critical infrastructure need”.
  • In the case of an L-1B Specialized Knowledge visa applicant – The applicant is a technical expert or specialist meeting a “critical infrastructure need” as evidenced by meeting each of the following requirements: (i) the applicant will provide significant and unique contributions to the petitioning company; (ii) the applicant’s specialized knowledge is related to a “critical infrastructure need”; and (iii) the applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

Each U.S. Consulate processes NIE waivers of the Travel Ban and the Visa Application Ban differently. Most Consulates have specific rules for how to submit the NIE waiver application and what should accompany it which are described in the Consulate web site. While Parker Gallini has processed a number of these waivers and our general experience suggests that Consular Officers are applying the rules liberally, be prepared for significant delays. U.S. Consulates continue to be inundated by these requests and a response to a waiver request can take as long as 30 to 60 days.

Questions about the travel bans, visa applications and national interest exception waivers? Reach out to a Parker Gallini business immigration attorney.

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Business Immigration Law Firm
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