On March 2nd, the State Department rescinded the previous policy for national interest exceptions (NIE) thereby making it more difficult for nonimmigrant workers and business travelers to obtain national interest exceptions under Presidential Proclamation 10143 in connection with regional travel from the Schengen Area, the United Kingdom, and Ireland.
The new policy became effective immediately and could affect nonimmigrant workers in the B, E, H, L, O, and P visa categories alongside those traveling for business under ESTA. The Department of State’s new policy limits NIEs to certain travelers who will provide “vital support for critical infrastructure.” It does not impact students traveling from the Schengen Area, the United Kingdom, and Ireland with valid F-1 and M-1 visas or qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. No previously-issued visas or NIEs will be revoked under the new policy.
The previous policy had broader application for travelers deemed to be substantially contributing to the U.S. economy and allowed NIEs for certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, and professional athletes. Now, travelers who seek entry to the United States to offer vital support to critical infrastructure sectors must apply for a NIE at the nearest U.S. embassy or consulate before traveling. If the NIE is approved, the individual may travel to the United States on either a valid visa or ESTA authorization.
The new “vital support for critical infrastructure” standard remains unclear. Critical infrastructure likely includes the following industries: chemical, communications, emergency services, critical manufacturing, energy, financial services, food and agriculture, healthcare, information technology, transportation, and water and wastewater systems. It is uncertain how the Department of State will evaluate “vital support.”
As a reminder, Presidential Proclamation 10052 remains in effect – banning certain H, L, and J nonimmigrants—through its scheduled expiration on March 31, 2021.
We are monitoring this development closely as U.S. consulates in the affected European countries begin issuing visas under the new NIE standards. Foreign nationals in the United States contemplating international travel should be cautious and prepare for the possibility of being prevented from returning to the United States for a significant period of time.
Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at firstname.lastname@example.org.