When President Joe Biden revoked the immigrant visa ban, but not the nonimmigrant visa ban or 14-day travel restrictions, it seemed there might be problems ahead. New restrictions on National Interest Exceptions (NIEs) to the 14-day travel restrictions for the United Kingdom, Ireland, and Schengen Area have been issued, and many individuals currently in the United States in E, H, L, O, or P status should not travel abroad to a restricted country unless they are prepared to remain there for some time.
On March 2, 2021, the Department of State (DOS) issued new guidance severely limiting the prior guidance for NIEs from the 14-day travel restrictions for the United Kingdom, Ireland, and the Schengen Zone. Previous categorical exceptions for professional athletes and treaty investors or traders no longer apply. The exception that previously covered certain technical experts and specialists, as well as senior-level managers and executives (those applying for H and L visas), has been rescinded. The only exceptions remaining are for those seeking to enter for humanitarian purposes, the public health response, national security, or “vital support” for a critical infrastructure sector. However, previously granted NIEs remain valid and will not be revoked due to the new policy.
A week earlier, on February 24, 2021, DOS updated its guidance regarding NIEs to the nonimmigrant visa ban, not to be confused with the 14-day United Kingdom, Ireland, and Schengen Area travel restriction. That update limited NIEs by requiring specific evidence, particularly for H-1B, H-2B, J-1, and L-1 visa applicants. As an example, a technical specialist, senior level manager, or other worker requesting an H-1B visa whose travel is necessary to facilitate the immediate and continued economic recovery of the United States must prove at least two of the following five indicators:
The employer has continued need for the services as evidenced by a Labor Condition Application (LCA) approved during or after July 2020. If the job can be performed remotely, then there is no continued need.
The applicant will provide significant and unique contributions to an employer meeting a critical infrastructure need and must hold a senior level placement, have job duties that are both unique and vital to the management and success of the overall business, or have specialized qualifications.
The wage rate meaningfully exceeds the prevailing wage rate by at least 15 percent.
The applicant’s education, training, or experience demonstrates unusual expertise.
Denial of the visa will cause financial hardship to the extent that the employer will be unable to meet financial or contractual obligations, continue in business, or create an impediment to the employer’s ability to return to its pre-COVID-19 level of operations.
Based on this guidance from DOS, it is possible that an individual may be eligible for an NIE to the nonimmigrant visa ban, but still be precluded from travel to the United States due to the tightened constraints on NIE eligibility for the United Kingdom, Ireland, and Schengen Area 14-day travel restriction.
Jackson Lewis P.C. © 2020National Law Review, Volume XI, Number 62