URGENT Alert to International Travelers: U.S. Department of State Issues New Guidance Restricting the Issuance of Nonimmigrant Visas and National Interest Exception Waivers

Arnall Golden Gregory LLP

On March 2, 2021, the U.S. Department of State provided guidance regarding the issuance of National Interest Exception (NIE) waivers for travelers from the Schengen Area, United Kingdom, and Ireland. This guidance will severely restrict travel to the United States for individuals in these areas, as the Department of State has announced significant restrictions to NIE waivers under Presidential Proclamation 10143.

This new guidance will have a substantial impact on all travelers, including L-1 and E visa holders, as well as others traveling under the visa waiver program (ESTA). Under the previous guidance from the Department of State, certain technical experts, specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents were eligible for NIE waivers. E visa holders and applicants were previously qualified for NIE waivers. L-1 visa holders would often qualify as managers, executives, or specialists. Travelers in ESTA or B visa status would also often be eligible, whether they were traveling as executives, managers, specialists/technicians, or in another capacity for urgent business needs. Under the previous guidance, many individuals in these categories were able to qualify for NIE waivers, permitting them to travel to the United States. However, under the new Department of State guidance, many of these individuals will find it more difficult, or even impossible, to qualify for an NIE waiver.

Under this new guidance, NIE waivers are restricted to “certain travelers seeking to provide vital support for critical infrastructure,” which includes vital support for the following infrastructure sectors:

  • Chemical;
  • Commercial Facilities;
  • Communications;
  • Critical Manufacturing;
  • Dams;
  • Defense Industrial Base;
  • Emergency Services;
  • Energy;
  • Financial Services;
  • Food and Agriculture;
  • Government Facilities;
  • Healthcare and Public Health;
  • Information Technology;
  • Nuclear Reactors, Materials, and Waste;
  • Transportation Systems; and
  • Water Systems.

Vital support pertains to the installation, acquisition, maintenance, and essential safety training necessary to sustain the supply and production chains in the referenced sectors. Additionally, other functions performed by specialists or other individuals that are essential to the continuity of operations in a sector may qualify for an NIE, as well. Finally, individuals whose travel will provide vital support to critical infrastructure-linked supply chains may be eligible for NIE waivers. It is expected that many technicians and specialists directly involved in the installation and maintenance of specialized machinery could continue to qualify, while many executives and investors will not qualify under this new NIE guidance.

Additionally, the Department of State has provided guidance stating that individuals whose travel would directly support the creation or retention of U.S. jobs could qualify for an NIE waiver. Applicants will have to provide evidence to consular officers that the proposed activity must physically take place in the United States and cannot be postponed or conducted remotely before such request will be sent to the Department of State in Washington, D.C. There, officers will determine whether individuals will directly support substantial job creation or retention in the United States. Such exception is expected to be very rare and criteria narrowly construed.  Additionally, as the Department of State in Washington, D.C. will adjudicate these waiver requests, not the individual consular posts, we could see delays in the adjudication of these NIE waiver requests.

Critically, NIE waivers and visa stamps that have already been approved will not be revoked due to this policy. Therefore, if you, or your employee, received an NIE waiver prior to March 2, 2021, you can travel to the United States during the 30-day period following such approval. However, subsequent NIE waiver requests and visa applications would be subject to the current guidance issued by the Department of State.

Additionally, some exceptions remain following the new guidance from the Department of State. Under the new guidance, the following exceptions to travel bans continue to exist and will be granted by U.S. consular posts:

  • Individuals traveling as diplomats (A or G visas), air and ship crew (C1/D visas), and students (F or M visas);
  • S. citizens, legal permanent residents, and their spouses, minor children, and parents of minor U.S. citizens and legal permanent residents;
  • Journalist and J-1 Academic and Research Exchange visitors;
  • Exceptions for humanitarian cases; and
  • Exceptions for individuals traveling to treat COVID patients or conduct public health research.

Finally, NIEs will remain valid for one entry within 30 days of approval. Each subsequent trip will require a new justification and a new NIE waiver approval.

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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Arnall Golden Gregory LLP

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