LawFlash

State Department Rescinds Prior National Interest Exception Determinations; Issues More Restrictive Guidance

March 04, 2021

In an unexpected development, the US State Department on March 2 rescinded the “National Interest” (NIE) exception determinations relating to Presidential Proclamation 10143. Presidential Proclamation 101043, which was issued by President Joe Biden on January 25, 2021, bars the admission into the United States of persons (other than United States citizens, permanent residents, and other discrete classes of foreign nationals) who were physically present in the Schengen area, the United Kingdom, the Republic of Ireland, Brazil, and South Africa during the 14 days before their attempted entry into the country.

The reason cited for this bar was the presence of new and virulent COVID-19 variant strains in these countries. The Proclamation previously contained a broad exception for visa applicants whose entry would be “in the national interest,” as determined by the Secretary of State or the Secretary of Homeland Security. Per the State Department, this exception covered “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.” This exception has now been removed with respect to persons physically present in the Schengen area, the United Kingdom, and the Republic of Ireland, but appears to remain available to persons physically present in Brazil and South Africa. No explanation has been provided for this selective application of the NIE rescission.

The State Department’s announcement indicates that it has created a new NIE determination related to Presidential Proclamation 10143, for “certain travelers seeking to provide vital support for critical infrastructure.” Critical infrastructure sectors include the following sectors: chemical and commercial facilities, communications facilities, critical manufacturing facilities, dams, defense industrial bases, emergency services, energy , financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water/wastewater systems. The State Department also notes that it will continue to grant NIE exceptions to “qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.” The rescission of the NIE exception to Presidential Proclamation 10143 therefore appears to target business visitors to the United States, and one United States embassy has stated that the effect of the NIE rescission is that “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 National Interest Exception.”

The State Department also indicates that academics, students, and journalists who have been in the Schengen area, the United Kingdom, and Ireland in the past 14 days will not be affected by the NIE rescission and may continue to qualify for NIEs. It is also noted that no previously-issued visas or NIEs will be revoked as a result of the new policy.

The State Department’s NIE rescission applies only to the bar on entry created by Presidential Proclamation 101043, and does not affect the entry prohibition created by Presidential Proclamation 10052, which denies admission to certain H-1B, L-1, J-1, and H-2B nonimmigrants, and for which NIEs remain available on less restricted grounds. Any person seeking entry in one of these statuses who has been physically present in the Schengen area, the United Kingdom, and Ireland in the past 14 days would still be subject to the Presidential Proclamation 101043 bar, however.

The practical effect of the State Department’s NIE rescission is that affected foreign nationals seeking visas to enable them to enter the United States who have been physically present in the Schengen area, the United Kingdom, or Ireland in the past 14 days must now argue that they are coming to the United States to provide vital support for a critical infrastructure sector and can no longer claim that an NIE is warranted on the more flexible grounds that were previously available. Presidential Proclamation 10143 has no specific sunset date and will remain in effect until the president terminates it. The Secretary of State for Health and Human Services will provide monthly recommendations to the president on whether or not the entry bar should remain in effect.

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Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga