New Rules for E2 Visas and National Interest Exceptions

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Deryck Jordan

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

Summary:  NIE eligibility requirements have become more restrictive for E2 visa applicants and E2 visa holders.

On March 2, 2021, the US Department of State changed the eligibility criteria for National Interest Exceptions.  Previously, E2 visa holders were broadly allowed obtain an NIE to overcome the ban of direct travel to the US from the Schengen region, the United Kingdom and Ireland.

However, under the criteria that was announced on March 2, E2 visa holders and E2 visa applicants are not automatically entitled to receive NIEs.  Senior executives and managers traveling to the US to observe operations, hold regular meetings with clients, and/or for routine operational business will no longer be considered eligible for an NIE.   Instead, NIEs are now granted for travel to the US for only two purposes:

  1. VITAL SUPPORT OF INFRASTRUCTURE. Travel with an NIE is allowed to provide “vital support” of critical infrastructure sectors or critical infrastructure-linked supply chain. The term “infrastructure” is not limited to highways and bridges.  The relevant critical infrastructure sectors are:
    • Chemical
    • Commercial Facilities, which consists of eight subsectors:
      • Entertainment and Media (e.g., motion picture studios, broadcast media)
      • Gaming (e.g., casinos)
      • Lodging (e.g., hotels, motels, conference centers)
      • Outdoor Events (e.g., theme and amusement parks, fairs, campgrounds, parades)
      • Public Assembly (e.g., arenas, stadiums, aquariums, zoos, museums, convention centers)
      • Real Estate (e.g., office and apartment buildings, condominiums, mixed use facilities, self-storage)
      • Retail (e.g., retail centers and districts, shopping malls)
      • Sports Leagues (e.g., professional sports leagues and federations)
    • 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
    • Water/wastewater systems

“Vital support” includes:

(a) The installation, acquisition, maintenance, and essential safety training necessary to sustain the supply and production chains in the referenced sectors, and

(b) Other functions performed by specialists or other individuals that are essential to continuity within a given sector. 

  1. SUBSTANTIAL JOB CREATION/RETENTION. NIE applications may be approved for travel that would directly support the creation or retention of US jobs. Some E2 visa applicants may satisfy this eligibility requirement.  However, the “jobs” exception is expected to be very rare and is designed for substantial job creation or retention.  For example, an E2 investor seeking to see or purchase new property or equipment would not be eligible for an NIE, but an E2 employee who is a specialist traveling to the US to repair an assembly line to allow US workers to work might be eligible for an NIE.  The decision on these grounds will be made by the Department of State in Washington, DC and not by the Consular Section at the consulate.  Each NIE applicant should demonstrate that the proposed activity must physically take place in the United States and cannot be postponed or conducted remotely. 

In light of these new criteria, many consulates have temporarily stopped processing E2 visa applications and have cancelled related interview appointments.   In such cases, E2 visa applicants will not have the opportunity to receive the E2 visa and then quarantine for 14 days in another country before entering the US.

It is not possible to predict how long these new criteria will be in effect.  During the last year rules pertaining to E2 visa applications and travel to the US have changed frequently.  The situation is dynamic and new factors may cause the criteria announced on March 2 to be short-lived.  For example, it was recently announced that the US vaccination process is picking up speed and all Americans in the US will have the opportunity to be vaccinated before June 2021.   Additionally, virus testing is now abundantly available.  It is therefore conceivable that through rapid tests and vaccinations, E2 visa applicants and E2 visa holders will again be able to travel to the US in support of the substantial E2 investment that was made.

To better understand how our law firm can help your E2 visa application, contact us directly.

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