Shaun is a business immigration attorney with broad international experience who counsels individuals and businesses across all industries in navigating the complex U.S. immigration system. He focuses his practice on employment-based visas...Read More by Author
Got the Travel Itch? Strict U.S. Travel Restrictions Persist Despite Relaxation of Rules for U.S. Travelers
As the summer kicks in and the global pandemic begins to shift in some countries, people are ready to travel, no matter the obstacles in the way. Curiously, while travel and visa rules are usually bilateral in nature, that is not how things are unfolding now. For instance, on June 18th, the European Union (“EU”) added the U.S. to its list of countries (non-binding) for which travel restrictions should be lifted. Italy now allows U.S. travelers vaccinated with one of the approved vaccines (Pfizer, AstraZeneca, Moderna, or Johnson & Johnson) and subjects them to testing and quarantine requirements. Spain and Greece have similar regimes in place. However, within this blossoming world of tapas and Mediterranean beaches, the U.S. government has not budged on lifting its strict travel restrictions for visitors and individuals seeking to conduct business in the U.S. To no surprise, this gridlock is causing a serious thorn in the side of multinational companies that are desperate to have their global workforce be able to visit or assume critical positions in the U.S. unencumbered.
Some data can be enlightening: While national full vaccination rates in the U.S. are near 50%, for Spain they’re around 40% and Italy sits around 33%. India is experiencing an abysmal 4.5% rate and China is not faring much better at 11.3%. Therefore, it should not come as a surprise that the Biden administration is not yet prepared to open up our borders.
Primary amongst the travel restrictions are a series of presidential proclamations that prohibit the entry of foreign nationals who were physically in a number of subject-countries within 14 days of seeking entry into the U.S.—and this is true even if they possess a valid visa.
Unless otherwise exempt from the travel bans, individuals physically present in a subject country who are seeking to travel to the U.S. have two options: (1) spend 14 days in a third country not subject to restrictions or (2) obtain a “National Interest Exception” (“NIE”) to the travel ban. For option #1, Mexico and Croatia have been popular destinations for obvious reasons. But for temporary business travel, having to add in an additional two weeks is generally impractical and very costly for the employer. Therefore, U.S. Embassies/Consulates around the globe—which are by and large still closed for routine visa services—have had to take on the onslaught of requests for an NIE, despite short staffing and amassing backlogs of visa applicants left unprocessed due to COVID-19 impacts.
To make matters more difficult, the specific NIE application protocols are not standardized across the U.S. Embassies/Consulates and each country has its own process and standards in place. In fact, some U.S. Embassies offer zero specific guidance on their websites as to how to satisfy the exacting NIE eligibility criteria. For businesses and U.S. immigration practitioners, it is cumbersome and provides for virtually zero predictability as to who will get approved, nor when and whether they will be able to make it to the U.S. for their programmed activities, which are often time-sensitive and business-critical.
In May, DOS broadened the eligibility criteria for an NIE, to include (excerpt): (i) those who are seeking to provide vital support or executive direction for critical infrastructure; and (ii) those traveling to provide vital support or executive direction for significant economic activity in the United States. However, one must not understand this as representing a relaxation of review standards. This novel and booming consular practice is keeping immigration lawyers busy and on their toes, as obtaining an NIE without the help of a seasoned attorney has dismal prospects for success.
Here at Obermayer, we have leveraged our deep bench of expertise and practical experience to develop winning strategies to securing NIEs for your global travelers. Please contact us to help support your global mobility needs.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.