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LAC Client Alert: Department of State Revises Standards for National Interest Exceptions (NIE) for travel to the United States

22:53 04 March in News Updates
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State Department Revises Standards for National Interest Exceptions (NIE) for travel to the United States

For Travelers from the Schengen Area, the UK and Ireland

Issues More Restrictive Guidance

The State Department has rescinded the previous standards for determining exceptions under the national interest (NIE) under  Presidential Proclamation 10143 as related to the Schengen Area, U.K., and Ireland. Presidential Proclamation 10143,  issued by President Joe Biden on January 25, 2021, bars the admission into the United States of individuals (other than United States citizens, lawful permanent residents, and certain other classes of foreign nationals) who were physically present in the Schengen area, the United Kingdom, the Republic of Ireland, Brazil, and South Africa during the 14 days prior to seeking admission to the United States.

The previous NIE categories covered certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents. The secretary also made a new national interest determination covering certain travelers seeking to provide vital support for critical infrastructure.

The guidelines, effective March 3, 2021, make significant changes in the criteria for granting NIEs to Presidential Proclamation 10143 (extending PP 9993) suspending travel from Schengen countries to the United States. Persons currently in the United States on E, H, L, O, or P visas are advised not to leave the United States for trips back to the Schengen Area, the United Kingdom and Ireland unless they understand that they may not be able to re-enter the United States for some time.

We do not have information on when PP 10143 or these new criteria for exceptions will be lifted.

What is Staying the Same:

  • Any NIE already granted remains valid.
  • The following visa categories still do not need NIEs:   diplomats (A or G visas) , air and ship crew (C1/D visas), students (F and M visas)
  • United States citizens (USC), United States Lawful Permanent Residents (LPR – Green-card holders); spouses of USCs and LPRs, minor children of USCs and LPRs, and parents of minor USCs and LPRs remain exempt
  • Exceptions for Journalists and J1 Academic and Research Exchange visitors continue
  • Exceptions for humanitarian cases continue, including for au pairs going to families whose parents are involved in direct treatment of COVID-19 patients
  • Exceptions for persons traveling to treat COVID patients or do public health research in any visa category continue
  • NIEs are still valid for one entry and thirty days; each trip requires a new justification and NIE
  • PP 10052 (extended by PP 10131) suspending visas for H and L visas categories and some J visa programs remains in force until March 31, 2021, unless extended by Presidential action.

What Has Changed:

  • The following previously excepted categories no longer automatically qualify for NIEs granted at post:
    • Professional Athletes (P category visas and some traveling on B visas or ESTA) (The league or competition sponsor must apply to Customs and Border Protection (CBP) directly for an NIE)
    • Investor and Trader (E category visas) E Visa applicants must meet the standards below
  • The “provide substantial economic benefit” standard is being replaced by a “vital support of critical infrastructure sectors as defined by the Department of Homeland Security or critical infrastructure linked supply chain” standard and a “directly support the creation or retention of U.S. jobs”  standard.
    • Designated critical infrastructure industries are, per the Department of Homeland Security/Cybersecurity and Infrastructure Security Agency (DHS/CISA) list:
  • Chemical Sector                                        –     Financial Services Sector
  • Commercial Facilities Sector                    –     Food and Agriculture Sector
  • Communications Sector                            –     Government Facilities Sector
  • Critical Manufacturing Sector                  –     Healthcare and Public Health Sector
  • Dams Sector                                              –     Information Technology Sector
  • Defense Industrial Base Sector                 –     Nuclear Reactors, Materials, and Waste Sector
  • Emergency Services Sector                       –     Transportation Systems Sector
  • Energy Sector                                            –     Water and Wastewater Systems Sector
  • The consulate cannot approve exceptions based on the “directly support the creation or retention of U.S. jobs” standard.   These cases must be referred to the Department for approvals by the Assistant Secretary of Consular Affairs.
    • These exceptions are expected to be very rare and the criteria is very stringent.
      • Before a case can be sent forward, “Each applicant should demonstrate to the satisfaction of a consular officer that the proposed activity must physically take place in the United States and cannot be postponed or conducted remotely.”
      • The examples given in Department guidance differentiate between those that would qualify – specialist repairing assembly lines to allow U.S. workers to work – and those that would not – investors seeking to see/purchase new property or equipment.
  • The travel must be directly related to supporting the infrastructure.  The examples given in Department guidance differentiate between those that would qualify – inspectors clearing deliveries or specialist who are completing essential components – and those that would not – senior executives traveling to observe operations or hold meetings.

Of Note:

The State Department has expressly stated that it will not issue a visa to someone in Europe without an NIE to allow them to travel to another country such as Bermuda or Mexico to quarantine for 14 days prior to proceeding to the United States.  In order for a visa to be issued the NIE must be satisfied.  State has advised it cannot enforce or monitor travel to a non-affected region, therefore, when they issue a visa it must be usable to travel to the US at the time of issue.  Posts are working at very low staffing levels and they must allocate their resources to people who are eligible to travel.  Therefore, State will not consider using its limited resources on applicants who don’t satisfy the NIE criteria nor will they issue annotated visas requiring travel to another part of the world before they can be used.

Consular posts have advised that under these new criteria, many of the individuals to whom they have granted NIEs in the past would not qualify.  This includes many E visa investors and senior executives in several visa categories or on ESTA travel. 

Many posts are cancelling E visa appointments scheduled for the next month and asking the applicants to request an expedited appointment if they feel they qualify for an exception under these new restrictions.

Posts also advise that if PP 10052 terminates on March 31, 2021, H and L visa applicants would then have to meet these new NIE criteria to secure H or L visas if traveling from a Schengen country.

J1 applicants currently suspended by PP 10052 (interns, au pairs, camp counselors, teachers, summer work and travel exchange visitors) will continue to be suspended under these new rules once PP 10052 terminates as they would not meet the criteria. 

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This update was prepared by Fausta M. Albi, Partner, Larrabee Albi Coker LLP.

Legal Disclaimer:   This e-blast is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.  Immigration laws and policies change frequently, often without notice.  It is therefore important to seek direct legal counsel based upon individual circumstances.

 

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