Tag: National Interest Exception

H-1B Cap Registration and Understanding Key RFE Issues

Biden Plans Reopening of US Border in November as our Firm Obtains Another National Interest Exception to Travel to the US

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President Biden has indicated that the US border will reopen in November, until then the National Interest Exception remains the only viable option for many people to enter the country.

The US border has been closed to people from Schengen countries in Europe as well as the UK, Ireland, India, Brazil and a number of other countries. President Biden announced this week that the eighteen month ban will be lifted at some point in November without giving much detail. The exact date remains uncertain and it is not clear whether the ban will be rescinded for all countries or only apply to the UK and the Schengen Zone.

So, for now there are only two viable options: spend two weeks in a permitted third country or make the case that your visit is in the US national interest.

Our firm has secured a good number of National Interest Exceptions NIEs for clients since the start of the Covid pandemic last March. This week, for example, we obtained an NIE for an Italian client seeking to travel to the United States on business.

The client is one of the leading Italian sales agents for the high-quality ceramic tiles. He represents the interests of a network of Italian tile companies – many based around the city of Modena. He is their global represenative and his area of responsibility includes the United States.

On behalf of the client, we argued that his work was within the permissible exceptions for travel as they came under the exceptions listed in the “Advisory Memorandum on Identification of Essential Critical Infrastructure Workers during Covid-19 Response”, issued by the Cybersecurity and Infrastructure Security Agency (CISA) on March 28, 2020.

His work supports the supply chain of building materials from production through application and installation, including cabinetry, fixtures, doors, cement, hardware, plumbing (including parts and services), electrical, heating and cooling, refrigeration, appliances, paint and coatings, and workers who provide services that enable repair materials and equipment for essential functions.

As we previously reported, these NIEs were recently bolstered to a year-long validity period with multiple entries to the United States permitted. That could soon be academic. If the restrictions on vaccinated travellers visiting the United States is lifted as indicated by the president next month.

There is also a chance that Biden will keep restrictions in place on some countries, so keep those National Interest Exceptions in mind

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

EB-1, E-2 Visa for NIEs during Covid

Travelling to the United States During Covid: Extension to National Interest Exception (NIEs)

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Life in America is returning to something resembling normality following a successful roll out of Covid-19 vaccines. However, disruption continues at the border with travelers from Europe (Schengen area), the UK, Ireland, China, India, Iran, Brazil and South Africa still banned unless you can obtain a National Interest Exception (NIE).

While restrictions may soon lift on the UK and Europe, the entry restrictions on the other countries show not sign of abating in the short term. Consequently, the State Department has extended the validity of NIEs to twelve months, permitting multiple entry to the US, so long as they are used for the purpose for which they are granted.

National Interest Exceptions permit travel to the United States, despite border restrictions. As the name suggests, you must be able to prove that your visit is in the US national interest.

Acceptable definitions of national interest include:

  • Directing significant economic activity
  • Journalist work
  • Supporting public health initiatives
  • Extraordinary humanitarian grounds

We have helped multiple clients obtain National Interest Exceptions permitting them to travel to the United States. Many of our E-2 Treaty Investor Visa, L-1 Employee Transfer Visa, New Office L-1 Visa and EB-1c International Manager or Executive Green Card clients may be eligible for National Interest Exceptions (NIEs). The same may be true for people on talent visas, such as the O-1 Visa, the EB-1a Visa, the EB-NIW, EB2 Visa, and other categories.

This issue only affects people coming from certain countries who are not permitted entry to the United States based upon high levels (current or historic) of Covid-19. As the pandemic evolves, new countries may be added to this list, whilst others may be removed. The countries as of today (July 8th) are:

  • China,
  • Iran,
  • Brazil,
  • South Africa,
  • the Schengen Area (Europe),
  • the United Kingdom,
  • Ireland,
  • India

Contact us to discuss how this affects you. Do not arrange travel to the US if you are either in or planning to visit any of the countries on the list above.

Read the State Department’s post.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

US Immigration Lawyer

EB-2 Visas – Permanent Residency through National Interest Waiver (NIW). A Case Study

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Davies & Associates obtained an EB2 National Interest Waiver (NIW) approval for an Organizational/Industrial Psychologist from South Africa. The client had initially wanted another visa, but our immigration attorneys proposed NIW as the better route.

Our client is a highly experienced and inherently talented Organizational/Industrial Psychologist with an advanced degree in Organizational/Industrial Psychology and extensive experience in her field.

Industrial & Organizational Psychology

Industrial and organizational psychology (“I/O psychology”), which is also known as occupational psychology, is an applied practice within the multi-discipline and esoteric field of psychology.  It is the science of human behavior relating to work and applies psychological theories and principles to organizations and individuals in their place of work as well as the individual’s work life in a more general manner. I/O psychologists are trained in the science-practitioner model.  They contribute to an organization’s success by improving the performance, motivation, job satisfaction, and occupational safety and health as well as to the overall health and well-being of its employees.  An I/O psychologist conducts research on employees’ behaviors and attitudes, and how they can be improved through hiring practices, training programs, feedback, and management systems.

How did we obtain the NIW?

D&A successfully presented the client’s outstanding body of work in the field and demonstrated how she meets the rigorous criteria for NIW classification. Although the jobs that qualify for a National Interest Waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.

Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Work.

What is the National Interest Waiver (NIW)?

The NIW (National Interest Waiver) is the third subcategory of the second-preference employment-based visa category (EB2 visa). Employment-based visas – anything with the prefix “EB” – are immigrant visas in that they offer permanent residency / Green Card.

In the NIW category, an applicant can request that labor certification be waived because it is in the US national interest to do so (the other EB-2 categories require labor certification). People working in any industry could apply for NIW, but the applicant should be able to demonstrate their role is in the national interest. This makes it especially popular for people in science and healthcare.

Other EB2 Visa Subcategories

The two other subcategories for EB-2 are “Advanced Degree” – anyone with an advanced degree plus at least five years of credible work experience – and “Exceptional Ability”. This is for people who have exceptional ability in the arts, sciences, or business. In this regard it is similar to the EB-1A category for people with extraordinary ability and the EB-1C category for international managers and executives. Unlike the NIW subcategory, these two subcategories do require labor certification. 

The client initially approached Davies & Associates with another visa category in mind and our team was able to recommend the EB-2 route instead. This highlights the importance of engaging with an immigration attorney early in the process. Our team offers an initial free consultation to prospective clients as part of this determination process.

Contact us to request your appointment.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

Obtaining an E-2 Treaty Investor Visa Despite Travel Complexities of Covid-19: Case Study

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E-2 Treaty Investor Visa Approved for a Canadian National who applied at the US Consulate General in Sydney during the pandemic

By Verdie Atienza, Head of L-1 & E-2 Visa Practice

Prior to the lockdown, D&A started to work on an E-2 visa application for a Canadian national who was temporarily in Australia for a vacation. The original plan was to apply at the US Embassy in Toronto where new E-2 applications for Canadians are filed and processed. It is worth noting that the Department of State encourages nonimmigrant visa applicants to apply at the US Embassy or Consulate in their home country as they are in a better position to determine the ties to the home country.

Due to safety concerns, travel restrictions and lockdowns, our client decided that she wants to apply for the E-2 visa in Australia instead of traveling back to Canada. For this to be possible, we had to advise the client to apply for extension of temporary stay in Australia. The request was granted and so we prepared, finalized and submitted the application at the US Consulate in Sydney. While the applicant had to wait a little longer, she was scheduled to appear for interview and her application was approved at the end of the interview.

While the Department of State cautions applicants of higher chance of getting a denial by applying at the Embassy or Consulate other than the one in the home country, D&A successfully demonstrated the applicant’s ties to the home country. D&A prepared a strong E-2 application which meant that the client had a smooth interview experience.

What was the E-2 Business?

Our client is a Chief Executive Officer of a cosmetics company based in Hawaii. The company specializes in developing and selling sun care products to be used before, during, and after sun exposure. The E-2 Company is dedicated to developing innovative sunscreen formulas that meet the ever changing and evolving skin and sun care needs. The Company’s formulas combine effective cosmetic active and beneficial natural ingredients to create products that achieve the sustainable beauty, health, and wellness goals of modern women.

The E-2 Company’s products are developed in collaboration with a third-party contract manufacturer. The Company carefully selects high-quality ingredients to be used in the manufacturing process in order to develop high-quality, effective sun care products that will simultaneously help users achieve their tanning goals in a sustainable and healthy way.

What is the E-2 Treaty Investor Visa?

The  E2 Investment Visa allows a person to move to the US to set up or acquire a business. Applicants must come from a country that holds an E-2 Treaty with the United States. Both Canada and Australia hold E-2 Treaties with America.

People from countries that do not have an E-2 Treaty with the US have to first become citizens of E-2 Treaty countries, like Grenada or Turkey. Citizens of India, China and Vietnam are not directly eligible for an E-2 Visa.

There is no fixed investment requirement for an E-2 visa, but it is usually expected to be in excess of $100,000. Ultimately, however, the investment amount needs to be appropriate for the business being proposed. A business plan is required as part of the application and the consular officer will assess the E-2 application on the basis of this plan.

E-2 is a non-immigrant visa, which means it does not offer permanent residency. It can, however, be renewed permanently provided the underlying business continues to operate successfully.

National Interest Exception

This case study raises the issue of travel difficulties during the Covid-19 pandemic. The United States border has been closed to people who have been in countries with especially bad outbreaks of the virus. This includes Schengen countries, the United Kingdom and Ireland.

Davies & Associates has been able to obtain travel waivers for L-1 and E-2 visa clients from these countries. By building the case that it is in the economic interest of America to admit these people, the US authorities have granted special permission to travel.

Read more about National Interest Exceptions.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

US Customs & Border Protection

Traveling to the US During COVID-19: Consular Applications & Interview Update

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By David Cantor Global Director of Client Relations

It is notably a difficult time for anyone needing to travel to the United States. Whether it is for purposes of business, family or leisure – travel restrictions are still in effect for the United States through December 31, 2020 as a result of the Presidential Proclamation.

In recent months, various US Embassies and Consulates have issued formal reports on the commencement of adjudicating select visa-applications, conducting interviews and granted travel permission to those who fall within the National Interest Exemption.

The National Interest Exemption (NIE), effectively permits individuals from the UK and Schengen Region to travel to the United States – the most common applicants being Students (F1 and M1 visa holders), Researchers (J1 Visa), Investors (E2) and those who need to attend to urgent, temporary, business matters (B1 or ESTA).

In order to determine whether you qualify for the National Interest Exemption it is necessary to submit a request to the respective US Consulate.

Navigating these requirements can prove challenging, since there is no uniform policy for the re-opening of US Consulates. For instance, the US Consulate in Rome is now welcoming E-2 Treaty Investor Visa applications, while the US Embassy in London does not expressly mention this on the State Department website.

The same goes for other US Consulates throughout the Schengen Region, and we suggest you further consult an attorney to determine visa-processing viability and NIE procedures through the respective Consulate.

What remains clear, is that waiting periods and additional processing delays are likely accumulating. For example, the United States Embassy in London was previously adjudicating E-2 Investor Visas within a 30-45 day window – while, cases filed in March and April remain pending and the earliest interviews that are being granted is August 2021.

That said, for qualified applicants you are generally able to make expedited requests and obtain Consular appointments in a much shorter period of time. However, you still need to fully-understand the processing requirements for the National Interest Exemption, as it varies from Consulate to Consulate. 

The global response to Covid-19 is unprecedented. The United States has imposed restrictions on visits from a swathe of countries and regions in an attempt to limit the outbreak. Nevertheless, if you are considering a US visa application, we recommend starting the process. It takes time to prepare and L-1 and and E-2 visa application, so this uncertain time can still be used effectively.

The E-2 Treaty Investor Visa allows a person to move to the United States with their family for the purpose of own and operating a business. Spouses are eligible to apply for work authorization outside the E-2 business. Applicants must be a citizen of an E-2 Treaty Country. Click here to find out if your country is on the list.

If your country is not on the list, it is necessary to first become a citizen of an E-2 Treaty Country. Davies & Associates is able to package together citizenship by investment (CBI) of Grenada or Turkey with an E-2 visa application. Find out more about the process here.

The L-1 Visa allows for the transfer of a manager or executive from the overseas branch to the US branch of the same company. This visa can also be used as part of setting up a new US presence. Davies & Associates can help you set up the US office before transferring an employee there to manage that business.

The Schengen area refers to 26 European countries that have abolished their internal borders. This includes much of the European Union excluding the United Kingdom, Ireland, and recent joiners. It also includes Iceland, Liechtenstein, Switzerland and Norway.

Contact Us to discuss your case.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

US Immigration Lawyer

National Interest Exception: Traveling to the United States during Covid19

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By David Cantor, Global Director of Client Relations, Davies & Associates

Recent months have proven to complicate matters for those seeking to travel to the United States. This is especially concerning for those that have serious matters to attend to within the United States – whether it be issues related directly business, academics or family.  

On July 20th, 2020, the US Embassy and Consulates General in Italy resumed certain immigrant and non-immigrant visa processing services – including appointments for treaty-investors, exchange visitors and students, as well as athletes and entertainers. This is also true for the US Embassies Consulates in other European locations, with certain exceptions – such as Paris, London and Belfast.

While there is still much uncertainty surrounding the existing travel bans as it applies to foreign nationals and specifically those in the Schengen region – it seems that some US Embassies and Consulates, as well as US Customs and Border Control authorities are beginning to provide practical guidance and potential pathways that permit temporary travel into the United States.

On July 15th, 2020 certain travelers from Schengen countries, including Italy, were permitted to resume travel into the United States through the National Interest Exemption. In order to be granted permission to travel from the Schengen region, an applicant must submit a National Interest Exemption request directly to the respective Consulate.

The National Interest Exemption (“NIE”) is best applied to those that are seeking to travel to the United States as Students (F1 and M1 visas), Researchers (J1 visa), Investors (E2), or for temporary business matters (B1 or ESTA).

To be considered for the NIE it is necessary that you qualify for one of the exemptions listed in the Presidential Proclamation, summarized below:

ECONOMIC BENEFIT EXCEPTION. An applicant must prove that the temporary travel to the United States will provide substantial economic benefit to the US economy. Qualified applicants through the national interest exception may include:

  • Technical experts and specialists
  •  Senior-Level managers and executives
  • Professional athletes, dependents and essential staff
  • Treaty-investors and traders

ACADEMICS & STUDENTS. An applicant should be participating in a bona-fide exchange program or full-time course of study. Qualified applicants through the national interest exception may include:

  • Full-time students
  • Professors
  • Research Scholars
  • Short-term Scholars
  • Other specialists 

I have a valid ESTA, can I travel to the United States?

If you have a valid ESTA and are coming from the Schengen region you still need to apply for the National Interest Exception (NIE) in order to be granted permission to travel.

I have a valid B1, E2, J1, O1, or F1 visa – can I travel to the United States?

If you hold a B1, E2, J1, O1, M1 or F1 visa, you still need to apply for the NIE in order to be granted permission to travel to the United States.

How do I apply for the NIE?

Supporting documentation must be sent directly to the Embassy or Consulate of your region of residence.  Contact us today to learn more.

Italian nationals can submit supporting documentation directly to the respective Consulate – please contact our Italy Practice Team today.

What documents do I need to apply?

This will depend on your local Consulate, however, basic documentation is required (i.e. biographic page of passport, proof of valid US visa or ESTA) as well as supporting documentation in English demonstrating your qualifications for the NIE as well as purpose for travel.

How long does it take to apply for the NIE?

Generally, 30-business days, however, this depends on your local Consulate. As discussed above, as of July 20th, the US Embassy and Consulates General in Italy resumed certain immigrant and non-immigrant visa services. It is very likely that there will be increased wait-times and substantial processing backlogs, so if you believe you qualify, it is encouraged to apply as soon as possible.

Can I include my dependents on the NIE application?

Investors, students and other academics can also include dependents in the NIE request.

I am in the United States, can I apply for the NIE?

No – the consular sections cannot accept NIE requests for those that are physically present in the United States.

How long is the NIE valid for?

Travelers permitted to enter the United States through the national interest exception must do so within-30 days of the approval. This is valid only for a single-entry into the United States.

The total permitted stay will depend on the permitted duration of stay granted  by the US Customs and Border Protection officers at the port of entry.

Is the NIE process complicated?

Since US consulates and embassies are just starting to re-open for routine processing of US visas, the NIE requests are fairly new and untested. We highly encourage you speaking with a qualified US immigration attorney to obtain a free consultation for this matter.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients.