Business Travelers and Nonimmigrant Workers Face New Challenges

Nilan Johnson Lewis PA
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On March 2, 2021, the U.S. Department of State announced unexpectedly that, effective immediately, it has rescinded a previous policy on categories of business travelers and nonimmigrant workers eligible for National Interest Exceptions (NIEs) to Presidential Proclamation 10143, which restricts travel from the European Schengen Area, the United Kingdom, and Ireland.  The new policy will indeed make it more difficult for business travelers and nonimmigrant workers to obtain permission to travel to the United States.

Previous Policy

Under the previous policy, NIE eligibility extended to “technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.” One advantage to this policy was that it permitted consular officers to grant NIEs to business travelers and nonimmigrant workers who were not only technical experts, managers and executives, and/or treaty traders and investors, but also those who made substantial contributions to the U.S. economy.

New Policy

The new policy rescinds the previous policy standard and imposes one that is more strict and narrow in scope. Specifically, under the new policy, NIEs for business travelers and nonimmigrant workers are only available to those who can show that they will provide “vital support for critical infrastructure.” This shift in policy will no doubt impact B, E, H, L, O, and P visa applicants as well as ESTA business travelers.

The term “critical infrastructure” has been used to describe sectors such as chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. While it is unclear what, exactly, is meant by “vital support,” employment in a critical infrastructure sector alone is most likely not sufficient.

Summary

Under the new policy, National Interest Exceptions are now limited to the following travelers from the Schengen Area, United Kingdom, and Ireland:

  • Nonimmigrants who will provide vital support for critical infrastructure;
  • Nonimmigrants whose travel is related to humanitarian travel, public health response, and national security;
  • Academics, J-1 nonimmigrants, and journalists; and
  • F-1 and M-1 students

It is worth noting that no previously-issued visas or NIEs will be revoked due to the new policy. Qualified travelers who are applying for or have valid visas or ESTA authorization with NIE notations issued under the previous policy may travel to the United States even as PP 10143 remains in effect.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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