Obstacles Remain in Travel Ban Exceptions

When we last saw Tom, the clothing manufacturer who wanted to bring in two German engineers to help fit out his factory to make Personal Protective Equipment (“PPE”), we confronted the hard realities of the travel bans. The ban, which barred citizens from the Schengen region (most of Europe) from entering the U.S., contained some exceptions, but without government guidance, Tom really did not know what to do.

Recently, however, nearly a month after the European Travel Ban went into effect, the U.S. Department of State (“DOS”) issued a notice acknowledging the existence of a national interest waiver that could allow foreign nationals to enter the U.S. “for purposes related to humanitarian travel, public health response, and national security.”  As explained in the DOS’s July 16, 2020, notice, “[g]ranting 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. . .”

In a separate notice issued by DOS,  concerning the ban on the issuance of visas to certain categories of non-immigrant workers, it also provided that certain H and J visa applicants could qualify for national interest  exception waivers:  Those  “who are traveling to work in support of critical U.S. foreign policy objectives (such as a COVID-19 response) and/or traveling at the request of the U.S. government.”

In yet a third notice issued on July 15, 2020, DOS announced that consular processing services, which had been in large part suspended during the pandemic, were coming back online, and that visa applications requesting a national interest exception waiver were being accepted for consideration.

For Tom, the path to bringing in his German engineers is getting a bit clearer: Tom’s German engineers can apply for national interest exception waivers through the relevant U.S. consulate in Germany. Tom would need to be involved because the engineers would need to supply documentation to the consulate explaining how Tom intends to fit out his factory to produce PPP, in addition to their own documentation showing their credentials and experience in manufacturing PPP. Of course, if Tom can obtain a letter from his congressional representative attesting to his plan to help in the effort to fight COVID-19, all the better.

Although the dust is settling a bit on how to take advantage of exceptions to the travel ban proclamations, however, the American Immigration Lawyers Association sounded a cautionary note on July 15th, explaining in a Practice Alert that conditions are far from normal, that consulates are significantly backed up in terms of visa processing and delays should be expected, and that, judging by how quickly agencies have responded to other health-related proclamations, it could be weeks, if not months, before criteria are established and consular posts begin to adjudicate these requests.

So, even though Tom now has some guidance on what to do about bringing in his German engineers, he is still playing a frustrating waiting game.  It may still be some time before his engineers can arrive in the U.S., and begin to help his company and the national effort.

 

Related content:  
Non-Disclosure Agreements- Protecting Business’s Proprietary Information
Work Made for Hire and Intellectual Property
Small Business Corporate Governance: Fiduciary Duties