Signs of Life? US Department of State News

Signs of Life? US Department of State News

National Interest Exceptions for Travelers from Schengen Area, UK and Ireland & Phased Resumption of Routine Visa Services. More stop and start and slowing of entry of those who already have visas.

One July 16th and 17th, 2020, the The US Department of State (DOS) announced further exceptions to the various travel bans issued via Presidential proclamations and on July 14th, 2020, an announcement that there will be a phased reopening of US Embassies and Consulates.

Phased Resumption of Routine Visa Services

The announcement that US Embassies and Consulates provides FAQs but basically, the reopening will depend upon the conditions in the country where the consular post is located, therefore, there won’t be a uniform opening of visa application services, “in coordination with the Department’s Diplomacy Strong framework for safely returning our workforce to Department facilities.  U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able.  As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.”

Expansion of National Interest Exceptions

The US Department of State (DOS) issued an update that set out further exceptions to the COVID-19 Travel Ban for those traveling from the UK, Ireland and Schengen Area and also indicated that F-1 and M-1 Students do not need to obtain a national interest exception to travel to the US. In its posting on July 16, 2020, DOS indicated, “Certain business travelers, investors, treaty traders, academics, and students may qualify for National Interest Exceptions under Presidential Proclamations (PPs) 9993 (Schengen Area) and 9996 (United Kingdom and Ireland). Qualified business and student travelers who are applying for or have valid visas or ESTA authorization may travel to the United States even as PPs 9993 and 9996 remain in effect.”

The next day, DOS issued exceptions to the April 22, 2020 and June 22, 2020 Presidential Proclamations (10014 & 10052) suspending the issuance of visas and entry of Immigrants and Nonimmigrants to protect the US labor force until December 31, 2020:

“Exceptions under P.P. 10052  and 10014 for certain travel in the national interest by nonimmigrants

  • Applicants who are subject to aging out of their current immigrant visa classification before the relevant P.P.s expire or within two weeks thereafter
  • For H-1Bs, exceptions are available 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-2Bs, exceptions 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 visas, exceptions are available in these situations:
    • Travel to provide care for a minor U.S. citizen, LPR, 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 States combat COVID-19.
    • An exchange program conducted pursuant to an MOU, 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 participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.
  • For L-1 visas, exceptions 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.
  • H-4, L-2, and J-2 visas exceptions:
    • 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 P.P. 10052 (including those that 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.”

Notably, DOS instructs those who believe they fall under an exception, “may request a visa appointment at the closest Embassy or Consulate and a decision will be made at the time of interview. Travelers are encouraged to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.” The difficulty is that many US Embassies and Consulates are operating under a skeleton staff and the phased re-0pening of consular services will be limited to the resumption of life in the particular country in which the embassy or consulate is located so while we have a better understanding of the exceptions, it may take longer to get into the embassy or consulate to request a waiver if a person needs to apply for a visa.

US Customs and Border Protection (CBP) – Uncertainty over the process for admission of those with visas.

While the new exceptions DOS posted are clear it is not yet clear how CBP will enforce and decide on a case-by-case basis whether someone who is a “business traveler, investors, treaty traders, academics, and students” who already possess a visa will fall under an exception. The US DOS is responsible for the review of visa applications and CBP determines who may be admitted into the US.

Exceptions still apply for humanitarian, public health response and national security and our office has worked with several clients to request a waiver of the travel bans issued since March 2020 but it is unclear whether CBP will also review the new exceptions to the COVID-19 travel ban. It is understandable that the agencies involved are involved with a herculean effort to ensure those who enter the US are entering for the right reasons and it must be difficult considering the pressures these agencies are under in dealing with erratic changes made by the Trump administration. It seems inefficient to have to require those who have already gone to the effort of obtaining work and investment visas to jump through further hoops and it will only result in a slowing of the US economic recovery.

 

Please note this posting is for informational purposes and must not be relied upon as legal advice. If you have a question about one of the proclamation exceptions, please contact our Principal Lawyer, Janice Flynn at janice@janiceflynnlaw.com or call our office at +44 (0)20 7092 6830 or