In response to the COVID-19 pandemic, four presidential proclamations suspended entry into the United States for specific groups. All non-citizens who were physically present in any of 33 countries during the 14-day period preceding their entry or attempted entry into the United States are not allowed entry.

These proclamations are

  • Presidential Proclamation 9984 (China);
  • Presidential Proclamation 9992 (Iran);
  • Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa); and
  • Presidential Proclamation 10199 (India).

These proclamations do not apply to U.S citizens, permanent residents, and the like. The Secretary of State also gave automatic exemptions to students, fiancés’ of U.S citizens, and other immigrants.

However, the Secretary requires National Interest Exemption (NIE) approval for certain travelers such as exchange students, journalists, and non-immigrants including H1B visa holders. These travelers are required to apply for NIE at the U.S consulate and get approval prior to their scheduled travel date to the United States.

Among the defined NIE allowable applicants, the most relevant ones for H1B employees are:

  • “those travelers providing executive direction or vital support for critical infrastructure sectors or directly linked supply chains” as outlined by the Cyber Security & Infrastructure Security Agency and
  • “those travelers providing vital support or executive direction for significant economic activity in the United States” The agency list 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the U.S that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.
  • Among the specifically defined infrastructures, the information technology sector, financial services sector, communications, and transportation systems sectors are most frequently used by H1B visa holders.

NIE is exclusively based on national interests. In order to qualify for an NIE exemption, applicants must prove and justify that their physical presence in the United States is absolutely necessary and their entry into the United States is a matter of national interest. NIE exemptions support the urgency and importance of the applicant’s U.S visit and further demonstrate that the planned activity must physically take place in the U.S and cannot be rescheduled or conducted remotely.

We know how these travel bans negatively impact individuals and companies and disrupt planned project execution and milestones. We help our clients navigate through these restrictions to minimize their financial and reputational exposures. Our firm strategy is to analyze each case individually and determine if a valid NIE argument can be made on behalf of employers.  We have successfully helped a number of our customers who got stranded abroad not being able to travel back to the U.S to resume their work. As a case study, we would like to illustrate the two most recent cases.

  • A Software Developer working on a state-owned project was unable to return to the U.S after his emergency trip to India. The project execution was in jeopardy because of his absence. We took this case and immediately started working with him and his employer to gather the necessary information. We determined that his work falls under the critical infrastructure category- Information Technology. We highlighted this in our letter to the U.S consulate in India. We also explained that because of the State mandated confidentiality regulation, he is not able to complete the work from outside of the U.S. We exhaustively listed his job duties and highlighted his critical role in the project execution team. We also made use of the project milestone showing his physical absence will significantly affect the timely release of the product. The U.S. Consulate in India granted NIE in a little over a week. Our client is now in the United States attending to his project.
  • Another client in a similar situation stranded in India was working on an in-house information technology project. We determined that his work squarely falls under one of the defined critical infrastructures. We highlighted that he is working on a project with a client that operates in the automotive telematics market, the development of vertical applications, mapping solutions for the tracking and management of corporate assets, and vehicles and personal safety. We argued that this is of national interest to the U.S and the work cannot be performed remotely due to obvious confidentiality reasons. The U.S. Consulate in India granted NIE in a little over a week.

The key to a successful application for an NIE exemption is understanding the requirements and having all information available. We work with our clients to ensure they have a viable case before proceeding. As a result, our clients see success. If you have a potential NIE case or any other immigration-related issue, contact us at ILBSG. We put our expertise to work for you.

h-1b immigration National Interest Exemption NIE