Changes To National Interest Exemption Program

On 2nd March 2021, the previous national interest guidance, which allowed those in certain visa categories to travel to the United States, despite the COVID related travel ban, was suddenly rescinded. This change specifically impacts the Schengen Area, United Kingdom and Ireland. ?

From July 2020, the Department of State allowed certain categories of travelers such as B-1 Visitors, E-1 treaty traders and E-2 investors to apply for a National Interest Exception (NIE). It also applied to technical experts, specialists, senior-level managers and executives? Applicants applying for an NIE under the B-1, E-1, or E-2 category needed to demonstrate that their entry to the U.S. would substantially benefit the U.S. economy.

However, under the new guidance the qualifying categories have been removed and there is now new language stating that NIE’s will apply to people coming to the U.S. to offer support to critical infrastructure sectors. Academics, J-1 students & journalists are able to still apply. Anyone with ESTA or a visa may still apply for a National Interest Exception but the standards for qualifying are narrower and this change does impact E-2 investor visa holders and applicants.

The original NIE language stated that the traveler must a “provide substantial economic benefit” to the U.S. economy. This standard is being replaced by a new standard, which is significantly more difficult to prove than economic benefit, as all E-2 companies will contribute to the local economy.

This change to the NIE standards can be interpreted as the new administration escalating its efforts to control the pandemic, especially in light of the new variants. E-2 visa investors are able to still apply for the NIE, but it is expected that the majority of the applications will be denied.

Those who hold valid visas should still be able to travel to the U.S. by travelling to a country without a travel ban, staying there for more than 14 days, and then travelling to the U.S. Although this is allowed currently, travelers should still keep in mind that the NIE regulations changed without warning and the 14 day process may change as well. Anyone traveling internationally should check entry requirements and have a plan in place in the event they are not able to return to the U.S.? Under the new administration, all international travelers must also provide a negative COVID-19 test no more than 3 days before traveling into the United States or be prepared to show documentation of recovery from COVID-19 and proof that they were cleared to travel.

Please note:

• The State Department has stated that it will continue to issue NIE’s for humanitarian travel or for travel related to a public health response or national security. There is no policy change for these NIE categories.
• The new guidance only impacts applicants who are in the process of applying for a National Interest Exception. It does not impact those who already hold valid National Interest Exceptions.
• It is not yet known how the new standard will be applied by the State Department in practice, but it is expected to increase the difficulty in obtaining an NIE for work or business travel to the USA from the affected countries.
• The nonimmigrant ban affecting certain H, L and J nonimmigrants?(Presidential Proclamation 10052) remains in effect until its scheduled expiration on March 31, 2021. Foreign nationals must address all bans that impact visa issuance in order to obtain a visa cleared for travel to the United States.