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The National Interest Exception Still In Effect— What Does It Mean For You And Your Employees?

August 12, 2021

It appears that Presidential Proclamation 10143, which suspended direct travel to the U.S. from the Schengen countries, UK, Ireland, South Africa, Brazil, Iran, China and India will remain in place for the time being, according to the administration. As discussed in our earlier alert, National Interest Exception (NIE)'s are now valid for one year from the date of validity of issuance and may be used on a multiple entry basis.

The criteria to continue to qualify for NIE has evolved over the past 18 months. As of August 2021, the following individuals are eligible to qualify for an NIE:

Vital Support of Critical Infrastructure
Individuals entering the United States for engaging in projects falling under the following categories and sectors will be granted NIE:

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

In addition, travel must be related to supporting infrastructure. Applicants must prove why they cannot work outside the United States and why their physical presence is necessary so that they are granted permission to travel to the United States.

Economic and Business Necessity
Foreign nationals who would have a strong economic impact on the United States, including those in E, L, 0, H-1B, B-1 and ESTA holders might qualify for NIE, assuming that their contribution and presence in the country would contribute to the financial success of a U.S. company which might employ hundreds, if not thousands of employees. In this instance, the argument to be made would include showing that the foreign national's presence in the U.S. would contribute to directly supporting the creation or retention of U.S. jobs.

Exceptions to NIE Requirements
It is also important to note that immediate family members of U.S. citizens and U.S. permanent residents and those who find themselves in countries other than those listed above are exempt from the NIE requirements.

Currently, NIE requests are submitted to a consular post. If the post does not respond to the request for processing, the NIE may allow an applicant to turn to a U.S. port of entry for consideration of the NIE at the port. To date, the U.S. ports of entry are not granting multiple entry NIE's for 12 months. Grants of NIE at airports remain valid for one entry within 30 days of the grant of the NIE.

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