April 1, 2021 marked the beginning of consular processing at U.S. consulates and embassies throughout the world without the restrictions imposed on certain nonimmigrant visa processing under Presidential Proclamation 10052, which went into effect on June 24, 2020 during the Trump administration (PP 10052).1 The legal bases cited for the imposition of PP10052 were §212(f) and §215(a) of the Immigration and Nationality Act, as amended (INA). The focus of the explanation for the imposition of the proclamation, however, was due to the loss of jobs in the U.S. due to the pandemic and the alleged negative impact of foreign workers on the U.S. labor market. With the sunset of PP 10052 will visa processing be restored to pre-pandemic procedures and timing for visa applications?.in short, NO.
What were the nonimmigrant visa categories restricted from visa issuance under Proclamation 10052?
To put the sunset of PP 10052 in perspective, it is first important to remember that it suspended the issuance of visas of certain nonimmigrant categories through March 31, 2021. Those categories were the H-1B, H-2B, L-1, J-1, and their qualifying dependents. Section 3 of PP 10052, as amended, restricted its scope to those nonimmigrants outside of the U.S. as of 12:01 am EDT on June 24, 2020. In addition, Canadian citizens, who are visa exempt in most nonimmigrant categories under U.S. law, were not subject to PP 10052. In addition, H-1B1 visas for Chilean and Singapore citizens were not subject to PP 10052. Below is an excerpt from the U.S. Department of State (DOS) training slides regarding the application of PP10052 to H-1B, H-2B, and L visas.2
What were the National Interest Exceptions (NIE) from the Application of PP 10052?
Section 3(b) of PP 10052 excluded the following from the application of PP 10052:
- Legal Permanent Residents of the U.S.
- Spouses and Children [defined by INA 101(b)(1)] of a U.S. citizen.
- Foreign nationals providing temporary labor or services essential to the U.S. food supply chain.
- Those who entry would be in the national interest.
The Secretaries of DOS and Homeland Security (DHS) were designated to establish the national interest standards, which included those critical to defense, law enforcement, diplomacy, or national security. The "national interest" was also designated to include those involved in the provision of medical care to individuals who contracted COVID-19 and are currently hospitalized; those necessary to facilitate the immediate and continued economic recovery of the U.S.; and those involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19. On August 12, 2020, DOS issued additional guidelines of a broader scope to qualify for NIEs.
U.S. consular posts implemented a multitude of processing requirements for the review of NIEs subject to PP 10052, which were unpredictable and time consuming. In addition, due to a case filed by the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, the National Retail Federation, Technet, and Intrax, Inc. (collectively referred to herein as the "Plaintiffs") against the application of PP10052, the U.S. District Judge for the Northern District of California, Jeffrey S. White, on October 1, 2020, enjoined the application of PP10052 against the members of the Plaintiffs. Judge White found that DHS did not establish that the President or any federal agency had conducted any evaluation regarding the actual effect of PP10052's ban on the issuance of certain nonimmigrant visas upon the domestic U.S. economy.
So What is the Primary Benefit of the Sunset of PP 10052?
New applicants for H-1B, H-2B, L-1, J-1 visas and their qualifying dependents no longer must request or qualify for an NIE for visa issuance. In addition, DOS no longer has suspended visa issuance to these categories and should adjust its scheduling priorities for such cases.
Why Can't Nonimmigrant Visa Processing Return to Normal Pre-Covid-19 levels?
Due to the suspension by DOS of routine visa services worldwide in March of 2020 and the subsequent phased resumption of services started in July of 2020, consular posts globally have tremendous backlogs of visa applications with priorities focused on immigrant visa processing for immediate relatives initially. To get an idea of the impact of the suspension of visa processing and resulting backlogs, the posted immigrant and nonimmigrant monthly visa issuance statistics provide some startling insights. 3
What Visa Services are Embassies and Consulates Beginning to Provide?
After addressing services required by U.S. citizens, consular posts are phasing in some routine immigrant and nonimmigrant visa processing. For immigrant visas, posts continue to prioritize cases for immediate relatives of U.S. citizens. Nonimmigrant visa services prioritize travelers with urgent travel needs, foreign diplomats, and certain mission critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (e.g. F-1, M-1, and certain J-1), and temporary employment visas.4 An embassy or consulate will only resume adjudicating all routine nonimmigrant and immigrant visa cases when adequate resources are available and it is safe for them to do so.
What Presidential Proclamations Remain in Effect?
The three geographical COVID-19 Proclamations (P.P. 9984, 9992, and 10143) remain in effect, which apply when the individual wishing to enter the U.S. has been present in one of the locations specified below in the 14-day period preceding their entry or attempted entry to the U.S. but for specified exemptions. 5
|People's Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau||February 2, 2020 5 pm EDT||9984 - 85 Fed. Reg. 6709|
|Islamic Republic of Iran||March 2, 2020 5 pm EDT||9992 - 85 Fed. Reg. 12855|
|Schengen Area,6 United Kingdom and Ireland, 7 the Federative Republic of Brazil, and the Republic of South Africa||January 26, 2021 12:01 am EDT||10143 - 86 Fed. Reg. 7467|
What is the Ongoing Impact of these Three Geographical Proclamations?
Those present in the affected countries within the fourteen day period before trying to fly to the U.S., must still obtain an NIE.
In addition, that process has changed for some. On March 2, 2021, DOS rescinded the previous NIE guidelines as to certain categories of travelers from the Schengen Area, the United Kingdom and Ireland. The previous NIE guidelines covered certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents. In addition, the Secretary of State announced an NIE determination focused on travelers seeking to provide vital support for critical infrastructure. A notable shift in this announcement provides that NIEs based on the creation or retention of U.S. jobs or economic impact argument, on their own, are no longer processed by the Embassy or Consulate. NIE requests based on a job creation and/or economic impact arguments must be referred from the consular post to DOS in Washington, DC for approval by the Assistant Secretary of Consular Affairs, which will result in further delays. Embassies and Consulates are no longer authorized to approve such requests directly.
Note, that the March 2, 2021 changes do not appear to address the existing NIE guidance for Brazil, Iran, China, and South Africa.
In order to try to travel to the U.S. when subject to these geographical proclamations, visa applicants could try to apply for an NIE under the geographic proclamation parameters with DOS or with certain ports of entry in the U.S. via U.S. Customs and Border Protection (CBP). Another option was to try to convince a consular officer to issue the visa without an NIE based on a representation that the visa applicant would remain for 14 days in a country not subject to a geographical proclamation before booking travel to the U.S. This option is rarely successful when a visa application is required.
As time has progressed this year, many consular posts are refusing to issue nonimmigrant visas to those deemed unqualified for NIEs under the geographic proclamations. In addition, some CBP ports of entry are not accepting consideration of NIEs, unless a consular post has initially denied the NIE. The options and policies are very fluid. The situation also causes an in-depth consideration of the legal possibility of business visits using the Visa Waiver Program and a 14-day quarantine in a non-subject country to the geographic proclamations before booking flights to the U.S.
How has the March 2, 2021 DOS Guidance further restricted NIE options for those subject to the Three Geographical Proclamations?
In order to restrict non-essential international travel, NIEs may not be approved, if the applicant does not provide vital support of critical infrastructure sections or qualify for another exception. This change is a significant departure from prior NIE guidance for E-visa registered company employees. Previously, E-visa registered companies were not subject to this restriction. In addition, those NIE applicants currently in the U.S., who were approved for a single entry NIE under prior criteria, may not be eligible for another NIE under the new guidance.
The U.S. Consulate in Frankfurt has advised that: "effective immediately," embassies and consulates can no longer approve NIEs for the following examples of business travel:
- Senior executives traveling to observe operations, hold regular meetings, or conduct routine operational travel.
- Senior-level employees, investors and treaty traders (including individuals with valid E-1 Treaty Trader and E-2 Treaty visas or applications) whose travel does not provide vital support of critical infrastructure sectors or critical infrastructure linked supply chain.
Students with valid visas or those applying for visas, however, will continue to be automatically considered for an NIE. In addition, students traveling from the Schengen Area, the United Kingdom, and Ireland with valid F-1 and M-1 visas do not need to contact an Embassy or Consulate to seek an NIE to travel. Students applying for new F-1 or M-1 visas should check the current visa services offered at the nearest Embassy or Consulate in advance.
How can Business Travel Qualify for an NIE under the Geographic Proclamations?
NIE approval is now based on the traveler's "vital support" function and if the business falls within one of the critical infrastructure sectors as defined by the DHS. DOS has indicated that "vital support," for example, relates to the installation, acquisition, maintenance, and essential safety training necessary to sustain the supply and production chains in the critical sectors, as well as other functions performed by specialists or others that are essential to "continuity" within a given sector.
In addition, DOS has indicated that in "compelling circumstances", personal travel that does not provide vital support of critical infrastructure sectors may still be considered in the national interest, if it will directly support the creation or retention of U.S. jobs. Such requests must demonstrate that personal travel is required/vital, directly supports the creation or retention of U.S. jobs, and that the proposed activity must physically take place in the U.S. and cannot be postponed or conducted remotely. The State Department has confirmed that no previously issued valid visas or NIEs will be revoked under the March 2, 2021 guidelines. These changes will only be effective as to visa issuances as of and after March 2, 2021.
As to any NIE request based on critical infrastructure, applicants must explain:
- Why the travel is required or necessary;
- Why the travel is urgent; and
- Why the travel directly will impact the critical infrastructure affected.
So What Does this mean to Nonimmigrant Visa Applicants?
- Continue to expect lengthy waits for visa appointment availability.
- Continue to prepare for consular appointment cancellations with little notice.
- Continue to search for Third County National processing options at posts.
- Prepare robust NIE requests under the new criteria and expect delays and consider NIE options with CBP, when possible.
- Prepare to file more extension or change of status requests for those in the U.S. with U.S. Citizenship and Immigration Services (USCIS).
- Don't forget about Automatic Visa Revalidation use for certain qualifying travel on expired visas to Canada and Mexico for no more than 30 days. 22 CFR §41.112(d).
1. 85 Fed. Reg. 38263 (June 25, 2020) https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/ .
2.https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-coronavirus.html and see the discovery materials from the Gomez, et. al., v. Trump litigation in the U.S.D.C. for the District of Columbia (Case No. 20-cv-01419 APM) regarding consular cables during 2020 posted at AILA Doc. No. 20100100 (October 1, 2020).
6. The Schengen Area comprises 26 European states: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
7. The proclamation did not apply to overseas territories of the United Kingdom outside of Europe.
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