There are important exceptions that allow companies to bring foreign workers to the US even at a time when presidential proclamations have generally blocked many work visa programs and new immigrants until after December 31, 2020.
National interest exceptions
The national interest exception (NIE) allows for qualified individuals otherwise blocked from being issued work visas to obtain visas and enter the US.
Employees applying for the L-1 or H-1B visa at a US consular post must qualify for an exception to receive the visa this year. Employees in any visa category who seek to come to the US from any of the regions proscribed by the proclamations (see the listed regions below) must either be granted an exception or come to the US via a 14-day-or-longer layover in a non-proscribed region.
The NIE is only available to people coming from the Schengen zone, UK and Ireland. People coming from other proscribed regions must layover in a non-proscribed region for at least 14 days.
The NIE’s economic exception relies on proof that the employee will provide a substantial economic benefit to the US economy. The US State Department specifically identified the following examples:
- Technical experts and specialists coming to install, service, maintain or receive training for vessels, machinery and other specialized equipment used by US and foreign firms with a substantial investment in the US
- Executives and managers coming to provide strategic direction necessary for the success of the company or venture
- Professional athletes and essential staff coming to participate in major sporting events
The NIE’s other exceptions are for:
- Workers in the public health sector, including researchers in COVID-19 or an area with a substantial public health benefit, such as cancer or communicable disease;
- E-1 and E-2 treaty traders and investors, senior-level employees who provide strategic direction or expertise essential to the success of the investment;
- ESTA B-1 and B-1 travelers whose travel is deemed helpful to the US economic recovery from the impacts of the COVID-19 pandemic; and
- Professors, research scholars, short-term scholars and specialists on J visas.
Note also that:
F-1 and M-1 students traveling from the UK, Ireland and Schengen zone automatically qualify and need not apply for the NIE.
- Dependent family members of those who are already in the US or who qualify for NIE may accompany the principal to enter the US or follow to be reunited with their family.
- No exception is required for US citizens, lawful permanent residents and certain close family members.
These NIE requests are required because of two presidential proclamations that stopped US consulates around the world from issuing new visas in some of the most commonly used categories until at least 2021, including H, L and J. These proclamations bar the entry of new immigrants who would arrive in the US as green card holders. In addition, there are proclamations that generally deny entry to the US for travelers who were in the UK, Ireland, Schengen zone, Iran, Brazil or China within the previous 14 days.
These sudden restrictions caught employers and business travelers off guard, leaving hundreds of thousands foreign workers anxiously waiting abroad for the US to reopen so they can resume work. Business leaders who rely on workers from overseas have openly objected to the administration’s move. Economists and research institutions argue that immigrants contribute to the US economy in many ways, including investing in the US, creating jobs for American workers, and bringing talents and skills that make up for a labor-force shortage in specific areas.
For full texts of the presidential proclamations, please see:
- Proclamation 10014: Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak
- Proclamation 10052: Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak
- Proclamation 9984: Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus (China, not including Hong Kong or Macau)
- Proclamation 9992: Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus (Iran)
- Proclamation 9993: Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus (Schengen zone)
- Proclamation 9994: Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus (UK and Ireland)
- Proclamation 10041: Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus (Brazil)
For full texts of the US State Department’s NIE announcements, please see:
- National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland
- National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak
Contact your Dentons’ lawyer if you have any questions.