April 13, 2021

Change in State Department’s Policy creates roadblock for Europeans seeking a new visa or a visa renewal

Last week, the Biden Administration restricted the qualifying justifications for approval of a National Interest Exception (“NIE”) to the COVID-based travel bans, to which countries in the Schengen Area, U.K., and Ireland are subject, to such a degree that very few applicants will now qualify. Moreover, the consular officers are under instructions not to approve the visa if the applicant does not also qualify for the NIE.

Just to recap, the Trump Administration imposed a COVID-based travel ban on the Schengen Area, (pursuant to Presidential Proclamation 9993) on March 11, 2020, and on the United Kingdom and Ireland (PP 9996) on March 14, 2020. Subsequently, on June 22, 2020, PP 10052 imposed an additional ban on H, L, and J-1 visas, and on June 29, 2020, PP 10052 was expanded to create the “National Interest Exception”, pursuant to which consular officers had the discretion to approve exceptions to the travel ban for a single entry to the U.S. within 30 days of approval, on the following grounds:

  • Public Health: Travel as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g. cancer or disease research).
  • Students: All students, and their dependents, traveling to the United States on an F or M visa to pursue a full course of study or on a J visa to participate in an exchange program as a bona fide student.
  • Academics: All exchange visitors and their dependents traveling to the United States on J visas in the following categories: Professors, Research Scholars, Short Term Scholars, or Specialists.
  • Investors: Travel in connection with investment or trade in the U.S. economy that generates a substantial economic impact, including investors and treaty-traders on E visas and the senior-level employees who provide strategic direction or expertise essential to the success of the investment, and their dependents.
  • Economic: Temporary travel that provides a substantial economic benefit to the U.S. economy, including:
    • Technical experts and specialists to install, service, maintain, or receive training for vessels, machinery and other specialized equipment used by U.S. and foreign firms with a substantial investment in the United States. Travel is temporary in nature and for a defined period of time.
    • Senior-level managers and executives, and their dependents, who provide strategic direction necessary for the success of the company or venture.
    • Professional athletes, dependents, and essential staff who enter the United States to participate in major sporting events, which bolster the U.S. economy.

The PP 10052 ban on H, L, and J-1 visas, and the “National Interest Exception” was in effect form June 22, 2020, to December 31, 2020, but then subsequently extended by President Trump from January 1, 2021, to March 31, 2021. Many applicants for new visas and people who already had valid visas succeeded in obtaining an NIE from a U.S. embassy or consulate in their home country.

Last week, on March 2, 2021, the State Department changed the criteria for qualifying for a National Interest Exception to only those people providing (click here to see the announcement on the State Department’s website):

(1) “vital support of critical infrastructure sectors as defined by the Department of Homeland Security or critical infrastructure linked supply chain” standard or a (2) “directly support the creation or retention of U.S. jobs” standard.

We received the following guidance from the U.S. Embassy in Paris on defining the two categories for qualifying and the standard of proof.

Vital Support of Critical Infrastructure

The designated critical infrastructure industries are, per the Department of Homeland

Security/Cybersecurity and Infrastructure Security Agency (DHS/CISA) list:

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

The travel must be directly related to supporting the infrastructure. The examples given in Department guidance differentiate between those that would qualify – inspectors clearing deliveries or specialists who are completing essential components – and those that would not – senior executives traveling to observe operations or hold meetings. The applicant must be able to show why they cannot perform their work from outside of the United States.

Directly Support the Creation or Retention of U.S. Jobs

The second standard is still not fully detailed in our guidance. What we can convey is that we at the Embassy cannot approve exceptions based on the “directly support the creation or retention of U.S. jobs” standard. These cases must be referred further to the Department of State for approval by the Assistant Secretary of Consular Affairs. Based on this, we expect these exceptions to be very rare and the criteria to be very stringent.

While this change in policy did leave intact any NIEs that had already been approved pursuant to the previous rules, this change in policy, with setting the standard so much higher and stripping consular officers of the authority to issue NIEs, will have a devastating impact on businesses owned and managed by holders of E-2 investor, E-1 trader, and L-1A transfer visas, as well as those businesses that rely on the knowledge, skills, and talent of managers and specialists under L-1A, L-1B, H-1B, and O-1 visas. Similarly, professional sports in the U.S. will lose the benefit of any professional athletes who are back home in Europe and do not have a currently valid P visa and NIE. Among others, this change in policy will have the following consequences:

  • Practically no owners, managers, or specialists of small- or medium-sized businesses, who are from the Schengen Area, U.K., or Ireland, will be able to obtain a first-time E, L, H, or O visa or renew such a visa, or will be able obtain an NIE to travel with a currently valid visa of these types, in their home country or anywhere else in the Schengen Area, U.K., or Ireland.
  • The businesses that depend on these key personnel will suffer in their absence. Particularly, small- and medium-sized businesses that depend on the leadership and drive of their owner-manager might fail.
  • Professional team and individual sports will lose the benefit of top athletes from the Schengen Area, U.K., and Ireland, if they are not already in the U.S. or do not already have a P visa.
  • Investors, from the Schengen Area, U.K., or Ireland, who would be interested and willing to invest in the U.S. during the pandemic, when the U.S. desperately needs investment and job creation, would be deterred from contributing to the U.S. economy through investment and job creation.

This is a very short-sighted and misguided policy! Why would the State Department not be willing to settle for E, L, H, O, and P visa applicants submitting to a test before entering the U.S. and committing to obtaining the COVID vaccination within a stipulated period of time, allowing for some flexibility if the vaccine does not become available in the area they settle in the U.S.? This is also disappointing when you consider that there are other categories of people, who continue to be able to enter the U.S. without an NIE:

  • Students under F and M visas,
  • Journalists,
  • Tourists who spend 14 days in a third country outside of the Schengen Area, U.K., and Ireland, and
  • Asylum seekers on the border with Mexico, who were previously required to await a decision on their application outside the U.S. under the “Remain in Mexico” program.

These categories of people have generally not invested in the U.S. or taken steps to create new jobs or retain existing jobs in the U.S.

The following categories of travelers from the Schengen Area, U.K., and Ireland will continue to qualify for exemption from the COVID Travel Ban without an NIE:

  • I. any lawful permanent resident of the United States;
  • II. any alien who is the spouse of a U.S. citizen or lawful permanent resident;
  • III. any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  • IV. any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  • V. any alien who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  • VI. any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  • VII. any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
  • VIII. any alien
    • A. seeking entry into or transiting the United States pursuant to one of the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or
    • B. whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  • IX. any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee;
  • X. any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
  • XI. any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees; or
  • XII. members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.

If you do not qualify for any of the above-mentioned exceptions, but you do already have a valid non-immigrant visa or ESTA registration, you can still take advantage of the loophole, whereby you spend 2 weeks in a third country outside of the Schengen Area, U.K., or Ireland, undergo a PCR COVID test that yields a negative result within 72 hours of your entry. This loophole remains available for those who already have a valid non-immigrant visa or ESTA registration.

The change in the NIE policy impacts only those, who do not yet have a visa or ESTA registration. Nevertheless, there might be a solution also for those, who do not yet have their visa. There is the possibility to apply at a U.S. consulate in a country outside of the Schengen Area, U.K., or Ireland, that is willing to process the visa applications of people visiting, but not living long-term in their consular jurisdiction. However, under this scenario, the visa applicant (and any dependent family members, who are applying for a visa as a dependent) would have to submit to a two-week quarantine prior to the visa interview in order no longer to be subject to the travel ban at the time of the visa interview. On this basis, the consular officer would be able to approve the visa without an NIE.

In the end, there is a potential solution to this conundrum, but the travel, lodging, and living expenses for spending 2 weeks in a country outside of the Schengen Area, U.K., or Ireland could make this solution prohibitively expensive for some applicants.

Please contact us with you would like assistance in navigating this minefield.

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