E2 Visa Investors and Executives are (Again) Eligible for NIE

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Deryck Jordan

Deryck is admitted as an Attorney at Law in New York and in Berlin.

The changes to the eligibility requirements for National Interest Exceptions (NIEs) that went into effect in May, June and July 2021 are generally good news for E2 treaty investors and E2 executives.

In previous articles we explained the purpose of the NIEs when they were first implemented and the subsequent tightened restrictions on NIEs.  Under the now outdated rules, E2 visa applicants were generally ineligible for NIEs unless their travel to the US was to render vital support to a critical infrastructure sector in the US, or for significant job creation or job retention.  Under those rules, most E2 applicants who held executive positions were not eligible for NIEs.  As a result, many US consulates suspended the processing of those E2 visa applications or postponed the applicants’ visa interviews.

The May and June 2021 revisions to rules regarding NIEs make E2 treaty investors and E2 executives generally more eligible for NIEs.  Pursuant to the new rules, E2 investors and E2 executives may be eligible for NIEs if their proposed travel to the US will be to provide executive direction for significant economic activity in the US or executive direction for critical infrastructure sectors.  The US Department of State has affirmed that executives and senior-level employees providing strategy and direction to US and foreign firms with a substantial investment in the United States may be eligible for NIEs.  This revised rule is similar in principle (but not identical) to the NIE rule from 2020 that largely made E2 investors eligible for NIEs. 

Effective July 5, 2021, all NIEs are valid for 12 months and multiple entries.  NIEs that were approved in the past 12 months will remain valid until one year after their original approval date.

Now that many countries (most notably those in the Schengen area) are allowing and actively seeking tourists from the US for the summer tourism season, it is conceivable that NIE restrictions may be again modified or altogether rescinded within a matter of months if the science demonstrates that travelers from the affected regions do not pose a general risk to the public health in the United States.

For support with your E2 visa application or NIE request, contact the lawyers at JORDAN COUNSEL.

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