Below are some FAQs we have received regarding National Interest Exceptions as well as some anticipated questions.

Question: What kinds of National Interest Exceptions are available for those impacted by the India travel suspension?

As confirmed by the Department of State website, National Interest Exceptions (“NIE”) will continue to be granted to qualified travelers seeking to enter the U.S. for humanitarian travel, public health response, and national security. There is also a national interest exception for those traveling to provide vital support for critical infrastructure sectors.
 

Question: What is considered a “Critical Infrastructure Sector?”

Specific instructions may vary based on the U.S. Consulate, but in general “Critical Infrastructure” is defined by the Department of Homeland Security to include the following:

  • Chemical
  • Commercial Facilities
  • Communications
  • Critical Manufacturing
  • Dams
  • Defense Industrial Base
  • Emergency Services
  • Energy
  • Financial Services
  • Food and Agriculture
  • Government Facilities
  • Healthcare and Public Health
  • Information Technology
  • Nuclear Reactors, Materials, And Waste
  • Transportation
  • Water and Wastewater Systems

Notably, for our H-1B clients, information technology is considered a critical infrastructure sector.

Question: How do you prove “Vital Support”

Vital Support will be the most challenging part of showing eligibility for a NIE. “Vital support” will mean showing that your services are “necessary for the continued existence” of your sector. In other words, you will have to show that your services are urgently important to sustain the identified critical infrastructure sector.

To demonstrate that your services provide “vital support,” you will have to prove that your physical presence in the U.S. is required. This means that if your work can be done remotely, an NIE is unlikely to be granted. To this end, if your LCA includes a remote/work from home address, this could be used to determine you don’t meet the requirements for an NIE. If you will be working from home while in the U.S., the consulate will likely determine your service can be performed remotely from wherever you are. As such, your travel to the U.S. will not likely be considered essential.

 

Question: Do management/executive activities qualify as “Vital Support”?

Based on what we have observed from previous travel suspensions from other countries, it is unlikely that senior executives and managers (typically those on L-1) traveling to observe operations, hold meetings, or otherwise supervise routine business activities will be eligible for a national interest exception. These managerial or supervisory activities will not likely meet the “vital support” requirement and may even be explicitly excluded as the Department of State provides further updates.

 

Question: What is the process for applying for a National Interest Exception?

If you already hold a valid and have definite plans to travel, you should contact the applicable embassy or consulate that issued the visa to request a national interest exception prior to travel. The U.S. Consulate in India has stated that you must send an email to the applicable consulate with the Following Information:

  1. Your First and Last Name
  2. Date of Birth
  3. Place of Birth
  4. Country of Citizenship
  5. Passport Number
  6. Visa Number and Category
  7. Confirmed Travel Dates
  8. Eligibility for National Interest Exception

You must outline the purpose of your travel and identify a national interest category, with a clear justification for why you should be granted a national interest exception. This would include strong documentation to support your services are essential for the vital support of an identified critical infrastructure sector.

The applicable emails are provided below:

If you do not currently hold a valid visa, but believe you qualify for a national interest exception, you will need to make an emergency appointment. The U.S. Consulates in India are only accepting emergency appointments at this time, which can be requested through the online system at https://www.ustraveldocs.com/in/expedited-appointment.html. Any request for an emergency appointment must identify a national interest exception and provide supporting documentation.

Question: If granted, how long is a National Interest Exception good for?

If granted, a national interest exception is valid for 30 days for a single entry.

Question: How do I know if I am eligible for a National Interest Exception or if my work in the U.S. will qualify?

If your work assignment/project falls within one of the critical infrastructure sectors, the question will turn on whether your services provide “vital support” for the industry. This is a case-by-case analysis, so we advise reaching out to an immigration attorney to evaluate your options.

Question: What kind of supporting documentation can be provided to show eligibility for a National Interest Exception?

To prove your work is in a critical infrastructure sector, you can provide a client letter and information about both your employer’s company and the end client company, if applicable. This includes brochures, internet websites, publications, press releases, etc. To show that your services are essential for “vital support,” you will likely need a letter from both your employer and your end client (if applicable) confirming that your presence in the U.S. is required for the continued existence of the project and that if you are not able to return, the project cannot be sustained. The letters will need to explain why you cannot complete your work from India and confirm you are needed on-site.

Question: What is the likelihood of success when applying for a National Interest Exception?

Based on our experience with previous travel suspensions for other countries, we expect that NIEs will be granted sparingly. This will depend on the strength of your documentation. Applying for an NIE should be considered carefully, with an attorney, to ensure the highest likelihood of success.

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If you have further questions about National Interest Exceptions or the travel suspension in general, please reach out to an ILBSG attorney today. We are here to help.

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