The National Interest Exception (NIE) is here to stay, for now. Recently the administration announced that Presidential Proclamation 10143, which suspends direct travel to the United States from the Schengen countries, UK, Ireland, South Africa, Brazil, Iran, China, Iran, and India, would be in place “for the time being”. In doing so, it also extended the validity of all NIEs for one year from the date of issuance. This means that anyone whose NIE was previously approved less than a year ago can use it to re-enter the U.S. directly. If the NIE was approved more than a year ago, it must be applied for again.
The criteria used to qualify for the exception have changed several times since its inception. As of August 1, 2021, here are the people and case types that still qualify:
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 includes L, E, O, H-1B, and even ESTA and B1 visa holders. This criteria is in many ways the only thing that facilitates 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. The key here is to argue that the physical presence of the individual “directly supports the creation or retention of U.S. jobs” standard.
Vital Support of Critical Infrastructure
If an individual is going to the U.S. to assist on projects which fall under the following categories they should qualify for the NIE (Can we individuals with U.S. work visas or employees of companies in restricted countries which have contracts for U.S. projects. 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, who would qualify in the first set of criteria for business/economic necessity.
When applying under either set of criteria, it’s important to note that both require the applicant to show why they cannot perform their work from outside of the United States, i.e why their physical presence is necessary for the U.S. and they cannot achieve the same goals virtually via videoconference.
NIE applications must be filed with the U.S. embassy or consulate corresponding to the country where the applicant is currently residing, so check the corresponding websites or contact a U.S. immigration attorney specialized in consular cases.
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