Tyson Fury interest exemption.pdf

 National Interest Exemptions for Athletes, Coaches and other Athletics Professionals under the Biden Presidential Administration


On May 22, 2020, Former Acting Secretary Chad Wolf of the Department of Homeland Security signed an executive order to make room for an exemption for certain sports leagues to get professional athletes and their essential support staff into the United States. This action cleared the way for foreign-national athletes and coaches from COVID-19-restricted countries to enter the United States. However, at the time of the order, the policy only mentioned the National Basketball Association, National Hockey League, United States Tennis Association, Professional Golfers Association, and a few other mainstream sports. 


There was immediate uncertainty on whether the exemption applied to other sports and individual athletes. Even though the exemption did not specifically mention the organizations/sports we worked with, we used the exemption to make business traveler arguments that were initially pretty successful. The presentations to the consulates included a copy of the exemption proclamation, to which we pointed out that while athletes were not competing with an organization on the list, the spirit of sport described   is in the national interest of the United States. The motivation behind allowing sports exemptions comes from the Presidential directions to the Department of Homeland Security that Americans need sports and sports are  important to reopening the economy.  These arguments were presented directly to the consulate nearest to the traveler and that consulate would adjudicate the information presented and then make a decision in a few days. 

Office of Field Operations (“OFO”) Coronavirus Coordination Cell of U.S. Customs and Border Protection 212(f) Waivers

Months later, this became much more of a toss up as more consulates would only consider national interes exemptions for athletes that were affiliated with “Exempt” organizations. The “exempt” organizations were approved by the Office of Field Operations (“OFO”) Coronavirus Coordination Cell of U.S. Customs and Border Protection to request 212(f) waivers. These organizations included the original organizations included in the Presidential Proclamation and new organizations that were added later on. These organizations included specific combat sports promotions, sports broadcasting organizations, motorsports, and several other niche sports organizations. 

The exempt organizations could email the OFO Coronavirus Coordination Cell of U.S. Customs and Border Protection and obtain entry permission for affiliated Athletes, coaches, and family members within a day or two. 

  • Foreign nationals on this list have requested emergency interviews at consulate offices for a visa, even at consulates that are completely closed on certain occasions.

 

  • Foreign nationals on this list will be exempt from all Customs and Border Control units on attempting entry into the United States. 



Changes Made to National Interest Exemption for athletes by the Biden Presidential Administration

On March 2nd, 2021, the Biden Administration issued new guidelines for National Interest Exemptions (NIE) and obtaining NIE’s has become more of an artform than an exact science. We have retooled and tailored our NIE practice to give our clients the best chance of obtaining these waivers. Depending on what consulate is closest to the client and which airport the client will be traveling through, the process and approach can be different. 


In certain situations we apply directly to the consulate in the Client’s country of residence as a business traveler. In other situations, we submit an athlete based petition directly to the office at the Department of State which handles athlete petitions (but is also very slow to respond). It all depends and we try all available options. 


Current trend is that there is more of a likelihood for success if the requests for the NIE comes from the traveler or the event organizer rather than an attorney. For this reason, our national interest exemption service now prepares packages for our clients and then creates a submission schedule for the client to submit the application themselves. We also provide a support staff person to assist with the submission process to the appropriate consulates and agencies. 


At the time of writing this article there seems to be confusion between the Department of State and Customs and Border Protection of who is responsible to adjudicate for athletes. 


Traditionally, we would apply directly to the consulate for athletes that are not affiliated with a 212(f) approved organization. Recently, these consulates are saying that they do not have authority to adjudicate petitions for professional athletes and to contact CBP. Note that they do not seem to differentiate between athletes and coaches. 


Here is an example from Shanghai



Hello,

 

I am writing to request a National Interest Exemption for xxxx xxxxxx. He is needed in the United States for a world championship boxing bout in the United States on XXXXX XXX. He is already approved and previously admitted in the United States with a P-1 visa stamp

 

Supporting documents are included with this request. 

 

Response

 

 

The Nonimmigrant Visa unit at U.S. Consulate General Shanghai does not adjudicate national interest exceptions (NIEs) for professional athletes.  To request an NIE for xxxx xxxxxxx, please contact the U.S. Customs and Border Protection’s (CBP) Office of Field Operations (OFO) Coronavirus Coordination Cell at this email address:  xxxxxxxx@xxxx. 

 


The issue with this is that the U.S. Customs and Border Protection’s (CBP) Office of Field Operations (OFO) Coronavirus Coordination Cell is directing that 212(f) NIE waivers should be made with the Department of State at a US Embassy or Consulate. 


Example: 



The proper protocol for obtaining a 212(f) NIE waiver for individuals located overseas is to request one through a U.S. Embassy or Consulate, as the Department of State is recognized as the primary approving authority of waivers for travelers located overseas.  


OFO Coronavirus Coordination Cell

U.S. Customs and Border Protection


When pressed for further clarification, the OFO Coronavirus Coordination Cell confirms that they will ONLY adjudicate waivers from professional athletes that are affiliated with organizations that are previously approved to request 212(f) waivers with their office. 

Good afternoon,

 

The OFO Coronavirus Coordination Cell only adjudicates waivers for professional athletes that are participating as members of approved professional sports leagues.  As this request is for an individual, located overseas, the proper protocol for obtaining a 212(f) NIE waiver is to request one through a U.S. Embassy or Consulate, as the Department of State is recognized as the primary approving authority of waivers for travelers located overseas.  Issuance of waivers to individuals overseas is at the discretion of the Department of State, and applying for a waiver does not mean that one will be granted.

Hope that clears up your confusion.

In practice, this does not clear up the confusion and the consulates are still doubling down on not being the proper agency to issue waivers. The only other option to request a waiver is to apply directly with the airport of entry. Each airport has different policies for making requests but most of them differ to a response from the consulate first.  

Good afternoon,

 

As of November 18, 2020, all NIE waiver requests must first go through the Department of State (DOS), U.S. Embassy or Consulate for consideration.  NWK waiver requests will consider requests after fourteen (14) days have passed from the initial request to the DOS, U.S. Embassy or Consulate with proof that an NIE waiver was submitted through the DOS and the fourteen (14) day period has passed.

 

Regards,

 

NWK Waiver Requests

U.S. Customs and Border Protection

Newark International Airport

When supplied with information that proves that a request was made for 14 days ago the Airport CBP then asks for further information to prove that the Consulate has refused to make a decision due to limited staffing. 

Newark would need email confirmation of both the initial request to the US Embassy and the feedback from the US Embassy stating they are unable to process your request within 14 days before we can consider a waiver request.

If the Consulate does adjudicate a waiver request and the response is a denial, the Airport NIE office will not overturn the decision. It is not yet clear what the response will be when the Consulate does not adjudicate saying that the OFO CCC CBP is the correct place to request a waiver. 

Newark can not process your request because the US Embassy has denied your request.  CBP Newark will not overturn the decision of the US Embassy.  Newark will only process a request that can not be processed by the US Embassy within 14 days due to staffing or because the US Embassy is shut down.  

The current National Interest Exemption process is very unreliable leaving most persons from restricted areas having to quarantine in a third country before coming to the United States. In my opinion, the current status is not sustainable and clarity will come quickly as there are so many stakeholders that need talent in the United States.