What executives should expect when trying to enter the United States in today’s climate (part 1)

22 July 2021 / Insight posted in Article

Originally published on KS Barlevi

For businesses whose executives split their time between the US and the UK, it’s never been more difficult to make it to the office. Particularly, if you live in the UK and regularly conduct business in a US office.

The US has imposed travel restrictions on the UK and Ireland since March 2020, and ongoing restrictions effectively block entry to travellers from the United Kingdom, Ireland and more than 26 countries in Europe and beyond. For the lucky few who hold certain types of visas or who can prove that their visit constitutes a “National Interest” for the US, there are exemptions. For the rest of the executives without these exemptions, conducting business via Zoom is likely to continue. It is a particularly tricky time to manage global employees, since many issues arise with people being stuck in countries or unable to work how they usually would across borders.

So, what is it like for these UK executives who historically spend 50% of their time at offices in the US, and simply cannot enter?

KS Barlevi sat down with Graham Tyler, Partner at Kingston Smith Barlevi and Chairman of Moore Kingston Smith, to get a sense of what executives should expect when trying to enter the United States in today’s climate. They were also fortunate to get expert analysis from Graham’s Immigration Attorney, Lauren De Bellis Aviv, immigration attorney and Managing Partner, Daniel Aharoni & Partners LLP in New York.

KSB: Graham, could you give us background on your current situation?

Graham: Pre-pandemic, I am someone who would spend half the year travelling to different locations for business, and because of our office in LA, I very much considered this my second home and where I would normally spend around 100 days per year. I applied for my National Interest Exemption on 1 June 2021 and was met with silence, which was slightly disconcerting, not least since I had made some flight bookings, until last week when happily I received my approval.

KSB: So, you’re officially allowed into the US? Can you help us understand what the process was like?

Graham: If you do not have legal permanent residency (a Green Card) or one of the other visas or circumstances (like minor US citizen child or marriage to a US citizen) that affords you exemption, the only way you can travel is if you get a National Interest Exemption. Effectively, you must have business that is in the national interest which has been interpreted to mean that it is urgently connected to providing executive direction or vital support to critical infrastructure or significant economic activity in the US.[1] The first step is to outline your critical business interests, your role and affiliations, and clearly detail the need that physically requires you to be in country as opposed to handling remotely. After drafting, you file your application request with the US Embassy in London.

KSB: Did you do this electronically? Did you submit this personally? How much does it cost to apply?

Graham: There are no application fees, but I strongly recommend seeking guidance and counsel from an Immigration Attorney as the rules are constantly changing and they will be able to advise you on drafting your application. My attorney helped me submit my written application directly to the Embassy – which to add complexity – most US embassies are closed!

KSB: Did you hear back from the Embassy quickly?

Graham: After submitting my application on June 1, I was told the lead time for a response would be around 15 days, which came and went. That lead time changed to 30 days, and two days before my flight we submitted a contact form inquiry requesting an urgent response. We didn’t hear back and so I postponed my flights and was told the response time had increased and was now up to 60 days. Much to my surprise, I received word 39 days after submitting my application and will be traveling to the US in August on the Exemption Certificate.

KSB: Lauren, can you help with some context on the situation?

Lauren: Demand to return to the US has skyrocketed. As one of the busiest embassies in the world, the US Embassy in London is overwhelmed with requests and so response time continues to increase.  Proper planning and advice is key to figuring out this labyrinth.

KSB: What advice do you have for other executives who are considering applying for an exemption?

Graham: Apply early. Give yourself three months for the entire process. Right now the US Embassy allows you to apply up to 60 days in advance of travel.  There is so much that goes into coordinating travel from the flights and accommodations to the business meetings and the IT. I also recommend contacting an Immigration Attorney who can help you navigate and streamline the process as well as possibly increase your odds of being granted exemption.

KSB: Why was it so important for you to physically be in your Los Angeles office?

Graham: The truth is that the day-to-day business has done fine without me, but what has happened, is that things that are important get pushed back. You defer key business needs until you can hopefully deal with them in person, with the risk that they become critical. Other challenges arise around staff, employees, interviews, and the items that really are best done face-to-face. These are issues that can’t wait, and so you sacrifice the process in order to deal with the urgent need. I think many executives are feeling the pressure to get back and physically be present to deal with these things properly.

KSB: What happens now?

Graham: The rules are constantly changing and so need to be monitored regularly. As it stands now, I will need to undertake a PCR test before I leave the UK, and also tests when I return. The US is an amber list country, from a UK perspective, so the requirement to quarantine on my return is lifted from 19 July as I have been double vaccinated. One further matter to keep in mind is that the airline schedules are perhaps less predictable than they used to be, particularly on routes where passenger numbers are much reduced so late changes to flights are also fairly commonplace.

KSB: If UK executives have urgent need to travel to the US more than once, must they reapply for another NIE?

Lauren: A recent positive development is that NIE approvals are now valid for multiple entries for one-year. NIE adjudications and procedures vary by Embassy; therefore, proper planning and advice is key to figuring out this complicated situation.

Read part two of this series following Graham Tyler’s business trip to the US in August.

For more details on travel exemptions, visit the U.S. Embassy & Consulates in the United Kingdom website here.

[1] Latest guidance can be found here.