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Non-Immigrant Visa Ban Expires, but Service Limitations and Travel Restrictions Remain
BMK Group

A temporary ban on certain Non-Immigrant Visas expired on March 31, 2021. This is certainly good news for non-immigrants and employers, as it removes an important hurdle for many who have been seeking entry to the U.S. But, it by no means signifies a return to business as usual. COVID-related travel restrictions and visa service limitations and backlogs remain, curbing the ability of U.S. Embassies and Consulates to process visa applications and schedule appointments. Yet, you may still be able to schedule an expedited appointment, as well as waive travel bans, if you qualify for an explicit exemption or a National Interest Exception (NIE).  

Non-Immigrant Visa Ban Sunset

Presidential Proclamation 10052 (P.P. 10052), which was issued in June 2020, suspended issuance of H-1B, H-2B, L-1 and certain J-1 visas and prohibited entry for those who were outside the U.S. and did not yet have a valid visa or travel documents, due to their “risk of displacing and disadvantaging U.S. workers during the Coronavirus pandemic.” The Department of State (DOS) announced that impacted visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance. Applicants who were previously refused visas due to the restrictions of P.P. 10052 can reapply by submitting a new application and visa fee. 

Visa Services Status Update

DOS recently provided an update on the status of visa services. DOS confirmed that there remains reduced appointment capacity during the pandemic due to local COVID-19 conditions and restrictions. DOS has noted that the provision of services to U.S. citizens abroad is the first priority of consular sections at U.S. Embassies and Consulates.  

In terms of visa services, for U.S. Embassies and Consulates that have the capacity, the processing of Immigrant and Fiancée Visas (K-1), particularly for immediate relatives and other family-sponsored applicants, are given the highest priority. U.S. Embassies and Consulates are also prioritizing the processing of Immigrant Visa cases previously refused under the rescinded Presidential Proclamations 9645 and 9983 that had suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

DOS confirmed that U.S. Embassies and Consulates which are “processing Non-Immigrant Visa applications will continue to 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 and exchange visitors (F-1, M-1, and J-1) and temporary employment visas.” U.S. Embassies and Consulates that process both Immigrant and Non-Immigrant Visas will prioritize Immigrant Visas while still providing some Non-Immigrant Visa appointments.

The volume and types of visas each U.S. Embassy and Consulate will process depends on local conditions in each country.  U.S. Embassies and Consulates will resume routine Immigrant and Non-Immigrant Visa appointments once sufficient resources are available and it is safe. DOS has extended the validity of visa fees until September 30, 2022, to allow all visa applicants who were unable to schedule a visa appointment due to the suspension of routine services the ability to schedule or attend a visa appointment with the visa fee they have already paid.

The operating status for each post can be found on each U.S. Embassy or Consulate website, and DOS has confirmed that it will continue to share updates regarding visa operations as well as the backlog in Immigrant Visa processing.

If a visa applicant has an emergency and needs to enter the United States immediately, applicants can find instructions on how to request an emergency visa appointment and applicable criteria at the U.S. Embassy or Consulate’s website.

COVID Travel Restrictions

Although P.P. 10052 was allowed to sunset, COVID-related travel bans that resulted from other Presidential Proclamations remain in effect for the Schengen Area (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), the United Kingdom, Ireland, China, Iran, Brazil and South Africa. Noncitizens who have been in an affected country – even if they never left the airport – during the previous 14 days cannot enter the United States. Certain individuals are exempt from the rule, as outlined in the next paragraph.

Explicit Exemptions to Travel Restrictions

In addition to U.S. citizens and permanent residents, several other individuals entering the United States are explicitly exempt from the travel restrictions, including spouses of U.S. citizens or permanent residents; foreign national parents or guardians and siblings of unmarried U.S. citizens or permanent residents under age 21 (the siblings also must be under 21 and unmarried); foreign national children, foster children, wards or certain prospective adoptees of U.S. citizens or permanent residents; foreign nationals traveling at the invitation of the U.S. government for purposes related to containment or mitigation of COVID-19; foreign air and sea crewmembers; and holders of certain Non-Immigrant Visas. 

NIE Applications

If you are not eligible for an explicit exemption, you may be able to seek an NIE. Each of the Presidential Proclamations issued includes an exception for individuals “whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.” DOS provided guidance for NIE decisions pertaining to certain travelers from the Schengen Area, United Kingdom, and Ireland. In updated guidance released in March 2021, DOS clarified that certain categories of travelers will remain eligible for an NIE, including academics (J-1), students (F-1/M-1), and journalists (I). Further, DOS said it would continue to grant NIEs for qualified travelers seeking to enter the United States for humanitarian purposes, public health response and national security, and, significantly, it added a category for travelers seeking to provide vital support for critical infrastructure. What constitutes “critical infrastructure” was not specified, but a Department of Homeland Security list of 16 critical infrastructure industries may be useful in preparing an NIE request. Critical infrastructure sectors are: 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, materials and waste, transportation, and water and wastewater systems.

The NIE guidance announced in July 2020 included exceptions for certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents. However, the March 2021 announcement rescinded those categories, stating these travelers were no longer automatically eligible for consideration for an NIE unless they qualify under another NIE category. Further, while the July 2020 guidance allowed a job creation and economic impact argument as a basis for NIE requests, under the revised guidance such requests now “require significant justification” to be considered on their own and must be approved centrally by DOS in Washington, D.C. 

Applicants may qualify for an NIE and get an expedited appointment request granted if they can demonstrate a compelling and urgent business need for their travel, such as that it is required to prevent financial loss or opportunity loss for a U.S. company or that it is needed to provide vital support to critical infrastructure. Further, applicants must show that their work cannot be postponed or performed remotely in order to qualify. 

Barst Mukamal & Kleiner’s immigration lawyers provide comprehensive immigration law services. Clients with questions about their Non-Immigrant Visa applications are encouraged to contact a Barst attorney. For general inquiries or to set up a consultation, please visit https://BarstLaw.com/contact-us/.

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