On March 2, significant changes were made to the criteria for granting National Interest Exceptions to Presidential Proclamation 10143 (extending PP 9993), which suspends travel from Schengen countries, the Ireland and UK to the United States.

The exception was extremely useful in facilitating direct travel from these countries for foreign nationals who make a strong economic impact on the U.S., including entrepreneurs, investors, executives, and managers, and those with specialized knowledge who are essential to the completion of projects. The alphabet soup included L, E, O, H-1B and even ESTA and B1 visa holders. The exception was in many ways the only thing that facilitated the quasi-free-flow of foreign nationals crucial to the financial success of U.S. companies that employ hundreds of thousands of U.S. employees. Not allowing them to be able to travel directly to the U.S. anymore is a huge mistake made by this new administration.

So now what?

Investors, including E visa holders and applicants, who were able to qualify for a National Interest Exception by showing that they would generate substantial economic impact, will now be required to show that they meet the new standards laid out in the guidance. It is likely that fewer E visa applicants will qualify to travel until the Schengen travel restrictions are lifted. For this reason, those currently in the United States on E visas should not leave the United States for trips back to their home country unless they understand that they may not be able to re-enter the United States for some time. IN fact, US embassies, like the one in Paris, have now canceled E-visa appointments for the next two months at least nd htere is nonew information on when PP 10143 or these new criteria for exceptions will be lifted.

Things remaining the same:

  • Any National Interest Exception (NIE) already granted remains valid.
  • Exemptions continue for United States citizens (USC), United States Legal Permanent Residents (LPR – Green-card holders); spouses of USCs and LPRs, minor children (under 21) of USCs and LPRs, and parents of minor (under 21) USCs and LPRs.
  • NIEs are still valid for one entry within thirty days of being granted; each trip requires a new justification and NIE.

Changes:

Investor and Trader (E category visa) visa applicants must meet the new standards below to qualify for an NIE. In the past, the requirement was that an E visa applicant shows that their travel would “provide substantial economic benefit.” This standard is being replaced by a (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.

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.

All this adds up to an almost comprehensive break in the business bridge between the U.S. and Europe, which only serves to weaken U.S. businesses with foreign owners, executives, managers or specialized personnel, further damage business relationships with Europe and potentiall lead to the loss of U.S. jobs.

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