Why? Oh My! ~ State Department Makes It Harder for Travelers from the Schengen Area, UK, and Ireland to Receive National Interest Exceptions (NIEs) under Pandemic-Based Visa and Entry Bans
“America is back, the trans-Atlantic alliance is back.” – So declared President Biden on February 23, 2021. Apparently, however, Antony J. Blinken, the newly installed U.S. Secretary of State (DOS), didn’t get the memo. On March 2, 2021, he “rescinded the previous national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamation (PP) 10143 [relating] to the Schengen Area, United Kingdom, and Ireland.” As DOS’s announcement of the rescission noted, PP 10143, issued on January 25, 2021, restricted the issuance of visas and U.S. entry to “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.”
NIEs for travelers from these Trans-Atlantic countries had been granted (at times with relative ease at some U.S. embassies and consular posts) based on previous State Department guidance. Under the prior guidance, executives, managers and specialists in the E-1 and E-2 (treaty traders and investors), H-1B (specialty occupation workers) and L-1 (intracompany transferees) visa categories, whose visit could be shown as likely to confer “substantial economic benefit” on the U.S., would often be approved. (For background, see this blog post (“Pursuing a National Interest Exception to the Presidential Entry Bans on Economic Grounds — Not A Fool’s Errand,” and slide deck, “Getting Your Key Employees Back to the U.S. under the National Interest Exceptions” to Presidential Proclamations ~ A Conversation about Eligibility and Process.”)
Now, however, as explained by the U.S. Embassy (Rome) in this communique, “[senior] 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.”
Inexplicably, Secretary Blinken’s abrupt change in policy did not include Brazil or South Africa – two nations included in PP 10143 – even though these countries are hotspots for particularly contagious variants of COVID-19. Nor does the new policy apply to travelers from China (PP 9984), or Iran (PP 9992) – countries typically considered U.S. adversaries. Also unexplained in the DOS announcement, “[students] traveling from the Schengen Area, the UK, and Ireland with valid F-1 [academic] and M-1 [vocational] visas do not need to contact an embassy or consulate to seek an individual NIE to travel [and] students approved for F-1 or M-1 visas “will automatically be considered for an NIE to travel.”
Equally mystifying and anomalous, President Biden on February 24, 2021 issued PP 10149 which revoked a different Trump-era COVID-based proclamation, PP 10014, resting the decision to revoke, in part, because PP 10014 “harms industries in the United States that utilize talent from around the world.” Still more confounding, there has been no change to the COVID-19 Labor Market ban, PP 10052, and the different, more-easily-attainable NIE standards for H-1B, L-1 and J-1 (exchange visitor) visa categories, as DOS reaffirmed them as recently as February 24, 2021.
In rescinding the “substantial economic benefit” NIE criterion applicable to travelers from the Schengen Area, UK, and Ireland, Secretary Blinken now requires American consular officers to be satisfied that the applicant will provide “vital support of critical infrastructure sectors” as defined by the Department of Homeland Security (DHS), or critical infrastructure linked supply chain support. According to DHS’s Cybersecurity and Infrastructure Security Agency (CISA), there are “16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.” They include 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, transportation, and water/wastewater systems.
I understand that DOS has internally offered examples of NIEs that consular officers are allowed to approve on their own initiative under the new “vital support of critical infrastructure” standard. These would include airline personnel conducting essential safety training or mechanics essential to the purchase of aircraft, food industry specialists, and specialized repair technicians for critical manufacturing. Other examples would include multi-million dollar business transactions involving U.S.-based, contractually-required inspections as a condition to closing, or otherwise necessary to complete critical elements of the deal.
If, however, the preceding criteria cannot be satisfied, but an NIE applicant’s travel from the Schengen Area, UK, or Ireland would directly support the creation or retention of U.S. jobs, then the State Department’s Visa Office would need to pre-approve the NIE before it could be issued. Under this directly-support test, the proposed activity must take place on American soil, and would be time-sensitive in that it could not be postponed or conducted remotely, e.g., where a U.S. manufacturing facility requires a noncitizen to repair an assembly-line malfunction that prevents American workers from performing their jobs, and would not merely involve a routine factory tour.
This flurry of ghoulish NIE standards – for pandemic-related proclamations issued, revoked, revised, rescinded, revived or resurrected – makes no sense from many policy perspectives.
- Public health. If the pandemic is truly a danger to the populace, why are students visa holders allowed to enter en masse? And why are Brazil and South Africa exempted from the new, tougher vital support/critical infrastructure NIE standard when the coronavirus threat is as great or greater in those countries than from Trans-Atlantic sources?
- Foreign policy. Why are travelers from adversaries such as Iran and China eligible for NIEs under a more lenient and explicit standard of proof while business executives, managers and essential personnel from our Trans-Atlantic allies are required to satisfy a more stringent, nebulous standard, and can be denied if traveling to observe operations, hold regular meetings with U.S. clients, and/or for routine operational travel?
- Economic policy. Why is “harm [to] industries in the United States that utilize talent from around the world” a basis to rescind PP 10014 but not an equally compelling ground to eliminate visa and entry bans applicable to travelers from Trans-Atlantic ally nations?
- Rule of law. Why is the State Department adjudicating and denying applications for “entry” to the U.S. when its consular officers only have authority to determine “visa ineligibilities” and not admissibility to enter the country? And why is U.S. Customs and Border Protection (CBP) directing NIE requestors to American embassies and consular posts when Immigration and Nationality Act § 212(f) – the asserted legal basis for all of these presidential proclamations – prescribes categories of individuals whose entry to the United States is suspended, given that CBP must determine an individual’s admissibility to enter the country?
- Interdepartmental accountability. Why is State using appropriated funds unlawfully under 31 USC § 1301(a)(“appropriations shall be applied only to the objects for which the appropriations were made . . .”) by performing CBP-authorized functions?
Fortunately, we should know the answer to these questions no later than May 3, 2021. This is when the Secretary of State, the Attorney General, and the Secretary of Homeland Security are “required to review existing regulations, orders, guidance documents, policies, and any other similar agency actions . . . that may be inconsistent with the policy” enunciated by President Biden on February 2, 2021 in his “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” By this deadline, these Cabinet officers must submit a plan to the President which will:
- identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law; and
- identify any agency actions that fail to promote access to the legal immigration system . . . and recommend steps, as appropriate and consistent with applicable law, to revise or rescind those agency actions. Emphasis added.
This author, respectfully, offers the hope that one of the “barriers” “to remove” in the Secretaries’ plan will be the seemingly senseless and irreconcilable sets of confusing and ambiguous NIE criteria that harm U.S. businesses, American workers, and our economy, and close our doors to allies, while doing little in substance to protect us against the spread of COVID-19.