Immigration Law Insights

While the United States has seen a drastic drop in COVID-19 cases as vaccinations become more prevalent, other countries continue to see significant infection rates.  Travel restrictions aimed at curbing the spread of COVID-19 remain in place.  Currently, foreign nationals who have been present in China, Iran, India, Brazil, South Africa, the Schengen region, the United Kingdom, or Ireland within fourteen days of attempting entry into the United States will generally be refused.  In order to avoid disruptions, businesses employing foreign nationals on H, L, O, and other temporary visas have relied heavily on the National Interest Exceptions ("NIE") to bypass the regional travel restrictions.  Recently, the Department of State announced an expansion of the National Interest Exception criteria that should allow more individuals to qualify.

Under the prior rule, an NIE was available to foreign nationals seeking to come to the United States on nonimmigrant visas or the Electronic System for Travel Authorization ("ESTA") if they provided vital support for critical infrastructure.  Under the new guidelines, foreign nationals providing vital support or executive direction for significant economic activity in the United States also qualify.

The expanded rule is particularly important for persons seeking to travel to the United States as an E-2 Investor.  E-2 Investors are granted visas to enter the United States and direct their business after making a substantial investment.  One of the chief aims of the E-2 program is job creation; therefore, E-2 Investors could be in a strong position to qualify for an NIE based on the economic activity they create through hiring American workers.  High-ranking executives of businesses that do not otherwise qualify as “critical infrastructure” should also be able to take advantage of the new standard.

United States Consulates and Embassies continue to adjudicate NIE requests on a case-by-case basis.  Despite having the same NIE criteria, the application process can vary wildly from Consulate to Consulate.  Applicants should carefully review and follow the Consular requirements when applying for an NIE to avoid delays.  The applicant should also be prepared to travel quickly after NIE approval.  NIEs are typically only valid for a single entry, which must take place within thirty days of approval.