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My employer (in Sweden) wants me to prepare for a possible trip to the US in May. They believe that we will be able to get a National Interest Exception for entering the US despite current restrictions. We have received supporting documents for this application from our US partners (one from a company designated Essential Business and one from a local government), which certainly look impressive. The plan is for us to travel with exceptions and ESTAs.

Since my employer has a less than perfect history of handling US travel, and since mistakes with US border crossings can easily result in permanent negative consequences for future travel, I am a little worried about this. I am worried about the application in itself, but also about possible stricter scrutiny of activities allowed under the Visa Waiver Program. Now, I believe that our activities are allowed under the VWP, specifically because they are short-term and no remuneration from a US source (B-1 in lieu of H-1B), but I have also heard some people comment that this sort of use of the VWP is a gray area (although not specifically in reference to our activities). Normally when I arrive at the US border a CBP officer asks me about the purpose of my travel, to which I respond with a short description (1 or 2 sentences) of my planned activities, and then they wave me through. I imagine that due to the drop in international travel, the CBP may have considerably more time to examine each VWP traveler more thoroughly, and maybe having a National Interest Exception would invite even more scrutiny?

So my question are:

  • Will a rejection of an application for a National Interest Exception for Travel lead to permanent negative consequences for future travel to the US?
  • Are we likely to face significantly stricter scrutiny of whether our activities are permissible under the VWP, either due to the exception or due to the special COVID situation in general?
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  • Do you work in person? If not you could travel to Turkey or Mexico first, spend 14 days there and fly to the US without applying for any special waivers.
    – JonathanReez
    Apr 25 at 16:32
  • @JonathanReez What do you mean by "work in person"? If I could work remotely during the time spent in a third country? It's an interesting idea, but I think there are several reasons it would not work in this case. Most importantly, it's not certain that I will actually travel. If I should travel, the decision will be taken with short notice. A 14 day delay will simply not work.
    – jkej
    Apr 25 at 16:46
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I imagine that due to the drop in international travel, the CBP may have considerably more time to examine each VWP traveler more thoroughly, and maybe having a National Interest Exception would invite even more scrutiny?

Or that they have less personnel working at the borders.

The plan is for us to travel with exceptions and ESTAs.

This sounds weird to me. Either you travel with an exception, or with an ESTA. An ESTA is specifically valid for business trips, where your company has legitimate interest to send you to the US, and you are paid by your own company for that. Or if you pursue future business interests in the US (e.g. seek a business agreement)

To answer your question

Are we likely to face significantly stricter scrutiny of whether our activities are permissible under the VWP, either due to the exception or due to the special COVID situation in general?

Don't assume any. Never. You should never travel assuming you won't get sufficient scrutiny. Border officers are trained and do their job very well. So expect to be scrutinized with the same attention they will pay in non-pandemic times. Your employer is doing paperwork for you, so this counts towards you.

Will a rejection of an application for a National Interest Exception for Travel lead to permanent negative consequences for future travel to the US?

Reading it correctly, likely no. Being denied a visa or entry under VWP (if you are rejected at the border) will have consequences. But an application for an exception is not a classic visa application, so you should be fine with a no as an answer.

In general, yes, I am sorry. It will also affect your future travel everywhere. Affecting means that you will be likely questioned a lot on almost every country you visit that exchanges passengers data with the US, for some extended periods of time. When you will be requesting a visa, a past rejection from the US may require explanation, but won't necessarily deny you visa or right to enter.

I haven't read the other full question, but it is my personal belief that if your employer is on err, officers will take this into account when examining future requests, which you will have to explain.

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    As I understand it, the exception is just an exception to the current travel restrictions. Alone it would not be sufficient to be admitted, and you can't apply for it without a valid ESTA or visa. But we would also not be admitted with just an ESTA or a visa but without the exception. In that sense we would travel with exceptions and ESTAs. However, my main point with that sentence was to point out that we plan to travel with ESTAs, rather than with visas.
    – jkej
    Apr 25 at 20:28
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    "When you will be requesting a visa, a past rejection from the US may require explanation, but won't necessarily deny you visa or right to enter." Are you saying that a rejection for this exception would be equivalent to a visa rejection? Would this also mean that I would need to answer "yes" to the "Have you ever been denied a visa?" question on future ESTA applications?
    – jkej
    Apr 25 at 20:28
  • Denied an ESTA is not denied a visa, but I guess your problem is being rejected at the border once you show up (yes, you were denied entry). I am no lawyer, the matter is being a lot difficult thanks to travel restrictions Apr 25 at 20:46
  • I mean that an ESTA can be denied when you are still home but you can always apply for a visa, and successfully. An ESTA is just a travel authorization that allows you to board the flight to show up at the border. Apr 25 at 20:47
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    "Either you travel with an exception, or with an ESTA": no, the traveler needs either an ESTA or a visa, as always, and also needs an exception to the additional restrictions that have been imposed because of COVID-19. This is clear from the link in the question.
    – phoog
    Apr 25 at 23:45

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