August 24, 2020

Foreign nationals who are subject to the current travel bans may apply for what is called a "national interest exception," which are being decided by consular officers abroad. Individuals seeking such are directed to follow the instructions on the nearest U.S. embassy or consulate's website regarding procedures necessary to request an emergency appointment and why they believe they may qualify for an exception. While a visa applicant subject to one or more Presidential Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request; at the time of the interview, the final determination regarding visa eligibility will be made. Because, however, U.S. embassies and consulates may only be able to offer limited visa services, they may not be able to accommodate the request unless the proposed travel is deemed emergency or mission critical. Travelers who are subject to a regional COVID-19 Proclamation but who do not require a visa, such as ESTA travelers, are also directed to follow the guidance on the nearest embassy or consulate's website for how to request consideration for a national interest exception.

Basically, those eligible for the national interest exception are those who enter to provide temporary labor or essential services to the food-supply chain, or those whose entry would be in the national interest, including persons (1) whose entry is critical to defense and law enforcement, and diplomacy; (2) who are involved with the provision of medical care to individuals who have contracted COVID-19 and are hospitalized; (3) who are involved with the provision of medical research at U.S. facilities to help combat COVID-19; (4) who are necessary to facilitate the economic recovery of the U.S.; and (5) who are children who would otherwise age out of visa eligibility. The Department of State has provided a nonexclusive list of situations in which travel would be considered to be in the national interest, and has provided detailed criteria broken down by the four visa types (H-1B, H-2B, J-1, and L-1A/L-1B) that are suspended under the Proclamation. National interest exceptions are also available for those accompanying or following to join a principal applicant whose travel has been deemed in the national interest. It is unclear, however, whether a foreign national's approved National Interest Waiver petition will play a role in determining whether that individual would satisfy the national interest exemption. This is because the National Interest Waiver petition is decided by USCIS and the national interest exemption is decided by DOS consular officers.

In an earlier notice, DOS announced that certain business travelers, investors, treaty traders, academics, and students from the Schengen Area, U.K., and Ireland may qualify for national interest exceptions. F-1 and M-1 students from those areas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.

Business travelers, investors, academics, J-1 students, and treaty traders who have a valid visa or ESTA authorization may qualify for a national interest exception; they also should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, the foreign national may travel on either a valid visa or ESTA authorization, as appropriate. DOS's notice also stated that it continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. Interestingly, the notice also stated:

  • Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship.
  • We appreciate the transparency and concerted efforts of our European partners and allies to combat this pandemic and welcome the EU's reciprocal action to allow key categories of essential travel to allow key categories of essential travel to continue.

Other Travel Restrictions Remain

As previously noted, foreign nationals who have been in any of the following countries during the past 14 days may not (with certain specific exceptions) enter the United States: China; Iran; European Schengen area; United Kingdom; Republic of Ireland; and Brazil. Exceptions are available for essential workers.

Border travel restrictions into Mexico and Canada also remain in effect at least through August 20, 2020. Nonessential border crossings are not permitted; however, essential crossings — such as returning U.S. citizens and lawful permanent residents, individuals travelling for medical reasons, returning to school, emergency responders, members of the U.S. military, spouses and children of U.S. military members, and cross-border trade — can still take place. Air, freight rail, or sea travel between the United States and Canada and the United States and Mexico is permitted, but that exception does not apply to passenger rail and ferry travel between the countries.

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