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03.04.21

State Department further restricts travel to the U.S.

BY Jason Gerrol

On March 2, 2021, the U.S. Department of State (DOS) issued updated guidance regarding the categories of travelers eligible for a National Interest Exception (NIE) to Presidential Proclamation (PP) 10143. PP 10143, issued by President Biden on January 25, 2021, extended previous travel restrictions issued under the Trump administration and prohibits foreign national travelers who have been physically present in Brazil, South Africa, the 26 Schengen countries of Europe, the U.K., or Ireland during the prior 14 days from entering the U.S. With few exceptions, travelers from these regions must first obtain the NIE prior to traveling to the U.S., and the updated DOS guidance will make that significantly more difficult.

Specifically, the updated guidance limits issuance of NIEs to travelers providing "[v]ital support of critical infrastructure sectors as defined by the Department of Homeland Security or critical infrastructure linked supply chain." In addition, while not announced in the initial DOS guidance, at least one U.S. Embassy has announced a second standard for NIEs based on a demonstration the proposed travel will "directly support the creation or retention of U.S. jobs." As of the date of this post, no additional clarification has been issued on this second standard, although it does appear requests for the NIE under this second standard will need to be referred to the Assistant Secretary of Consular Affairs for approval, and the issuance of NIEs under this second standard will be "very rare" according to the U.S. Embassy.

The prior NIE guidance, effective July 15, 2020, permitted travel to the U.S. when such travel provided "a substantial economic benefit to the U.S. economy." This included E-1 and E-2 visa employees who provide "strategic direction or expertise essential to the success of the [U.S.] investment," as well as technical experts and specialists, and senior-level managers and executives who provide strategic direction "necessary for the success of the company or venture." Under the new NIE guidance, such travel will no longer be eligible for the NIE, and U.S. Embassies have already announced "[s]enior executives and managers traveling to observe operations, hold regular meetings with U.S. clients, and/or for routine operational travel will no longer be considered eligible for a [NIE]."

There is currently no expiration date established for PP 10143. As a result of the stricter NIE standards, foreign nationals currently in the U.S. should refrain from traveling to impacted countries, and should consult with immigration counsel prior to making any international travel plans.

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Jason Gerrol

Of Counsel

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