Navigating the National Interest Exception to the Presidential Proclamation
New guidance for business travelers
If you are a business traveler to the United States you may be impacted by the Presidential Proclamation barring the entry of certain persons and recent changes in the criteria for obtaining the so-called “national interest exception” or “212(f)” waiver to the Proclamation.
Due to the complexity of the Proclamation and its exemptions and exceptions, this article focuses on UK or Irish citizens traveling for business to the United States who are not seeking work visas—individuals who typically travel through the Electronic System for Travel Authorization (ESTA) for business purposes or have, have had in the past, or would qualify for, a B1/B2 visa.
Barriers to entry
On March 14, 2020, the President, through Proclamation 9996, suspended the entry of all foreign nationals physically present in the United Kingdom or Ireland for the 14-day period preceding their entry or attempted entry in the United States. The effective date of Proclamation 9996 was March 16, 2020.
Those who had a valid ESTA or a B1/B2 visa before the Proclamation came into effect should assume those documents are no longer valid for travel.
Exemption vs. Exception
Certain travelers are exempted from the Proclamation by language of the Proclamation itself. Most exemptions are based on a relationship, for example, spouse of a U.S. Citizen. Other travelers may qualify for an exception, which is discussed below.
Those exempted from the Proclamation, i.e., those the Proclamation does not apply to, include the spouses of American citizens or of lawful permanent residents (LPRs –“green card” holders); LPRs; children, foster children, or wards of American citizens or LPRs; parents of LPR or U.S. citizen children, provided such children are unmarried and under age 21; non-immigrant crewmembers of vessels, and others.
If you are exempted from the Proclamation, that fact is determined (“adjudicated”) at the port of entry when you enter the United States. It cannot be adjudicated ahead of time, e.g., through an ESTA application. When you travel, you should arrive early at the airport and bring evidence that you are exempted from the Proclamation. For example, if you claim an exemption because you are the spouse of a U.S. citizen, you should have your marriage certificate on hand. You may need to show these documents to the airline agent to be allowed to board.
Do not attempt to check in for your flight online with your ESTA; the ESTA has been cancelled by CBP and such registration will delay your processing. Instead, arrive early and show your documents to the airline agent. If the agent accepts your documentation the airline will work with CBP to ensure your ESTA is re-instated so you may board.
If the airline agent doubts that you qualify for an exemption and wishes to deny boarding, ask the agent to communicate with the CBP Immigration Assistance Program representative at the airport, or the CBP Regional Carrier Liaison Group if there is no CBP representative at the airport. CBP operates a 24-hour hotline for airlines to ask specific queries about what documentation is acceptable. For Europe, the CBP Carrier Liaison Group is located in New York and the 24-hour hotline is +1 718-553-1873.
It is worth noting that CBP operates full pre-clearance facilities at Dublin and Shannon airports. If your travel to the United States is from one of those airports, you will simply go through the CBP adjudication process and the port of entry at the airport itself and have no screening on arrival in the United States.
The Department of Homeland Security has directed airlines operating flights from the countries affected by the Proclamation to only arrive at 15 designated ports of entry in the United States. These include JFK, Chicago, Atlanta, and other major airports, but you are advised to double check that your airline has routed you to enter the United States at one of the 15 designated airports.
National Interest Exception
Travelers who are not exempted from the Proclamation, e.g., because they are a green card holder or a U.S. citizen spouse, may still qualify for an exception to the Proclamation. The most common exception is known at the National Interest Exception (NIE) (also sometimes referred to as a “212(f) waiver”).
If you believe you qualify for the NIE, even if you already hold a visa, your NIE cannot be adjudicated at the port of entry or the airport; it must be adjudicated ahead of time. In other words, you will need to apply to the U.S. Embassy in London or the Consulate in Belfast and appear in a personal interview before a U.S. consular officer to obtain authorization to travel.
If the consular officer decides that you qualify for the NIE and you already have a visa, a note will be entered into the consular system which will inform CBP at the port of entry that you have established the NIE and are cleared to travel. If you do not currently hold a visa and are applying for one and you qualify for NIE, your new visa will bear a special annotation that you are excepted from the Proclamation.
Although NIE sounds as if it only applies to those bringing economic or national security benefits to the United States, it is possible to qualify for an NIE if you have an emergency need to travel for humanitarian reasons. Enquire with NNU Immigration for further information or contact the U.S. Embassy in London.
The most common way a business traveler can qualify for NIE is to present a case that their travel provides a substantial economic benefit to the U.S. economy. This would include specialists and experts who are installing or servicing specialized equipment used by firms with large investments in the United States; senior-level executives and managers who are guiding their U.S. or foreign companies doing business in the United States strategically; or investors whose investment in the U.S. economy creates substantial economic impact including U.S. jobs.
If a consular officer grants a NIE, the grant will allow the traveler to enter the United States once for up to 30 days after the adjudication.
Not a simple matter
Unfortunately, the process of applying for an economic-based NIE is complex and time-consuming. As the U.S. Embassy has limited on-site staffing, the case must be a strong one to justify the expedited interview appointment. What the applicant writes in their appointment request, and what they say in the interview if granted, and the documents presented, are all crucial to the outcome.
To find out whether you qualify for an NIE, seek advice. The U.S. immigration attorneys at NNU Immigration are specialists in business travel to the United States and are aware of the latest trends and information bearing on adjudication of the NIE and the Proclamations at the U.S. Embassy in London and the U.S. Consulate in Belfast. Please contact our US immigration specialists for the latest advice for your specific circumstances.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: September 1, 2020