On March 2, 2021, the Department of State rescinded its previous policy regarding the criteria for granting national interest exceptions (NIE) for those affected by the European COVID-19 travel ban (Schengen countries, UK, and Ireland) (Presidential Proclamation 10143). This new policy will remain in effect until further notice and does not have a date of when it will end. The prior NIE eligibility criteria had broader and more generous exceptions for technical experts and specialist, senior level managers and executives, business travelers, treaty traders and investors and other categories, and their dependents, whose purpose of travel provided substantial economic benefit to the US.
The new NIE standard, which became effective on March 3rd , will make it difficult for many work and business travelers to obtain NIEs and/or visas, unless they are seeking to provide vital support for critical infrastructure. Visa applicants and applicants for NIEs must now provide evidence on how they provide vital support for critical infrastructure sectors as defined by the Department of Homeland Security . These sectors include communications, financial services and information technology, along with a wide range of other industries. It is not clear what the terms “vital support” and “critical infrastructure” will come to mean, but as in all new policy changes, we will continue to monitor this very fluid situation.
This new policy clearly impacts all visitors, including B, E, H, L, O and P visa applicants and visa holders and ESTA business travelers. It does not impact or change the NIE policy for students, J-1 academic and research exchange visitors, journalists or NIE requests based on humanitarian travel, COVID-related activities, or national security. It also does not change the exempted categories as listed in the proclamation.
It is not clearly known how the new standard will be implemented by the State Department. However, we have already seen some actions taken at certain posts in response to this order. Several consulates have refused to issue visas to applicants who they find are not eligible for NIEs. They are indicating that they will process the visas once the restriction is lifted.
Prior issued NIEs or visas will not be revoked, but foreign nationals are reminded that they must travel to the US within the 30-day national interest exceptions validity period, as it is only valid for one entry. Anyone who does not travel within that time frame will need to apply for a new NIE under the new standard, running the risk of being rejected under this narrower standard. Any pending applicants for visas or NIEs may receive cancellations, and foreign nationals would then have to satisfy the new NIE requirement to be rescheduled.
Please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group attorney for any questions or concerns. Click here to stay updated on our weekly alerts.
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