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Recent E-2 Visa restrictions and National Interest Exception (NIE)

By February 15, 2021May 14th, 2021E-2 Visa, Immigration, Investor Visas
White House

President Joe Biden has issued a new proclamation on Jan 25th 2021, which in essence reinstates the most recent E-2 Visa restrictions and National Interest Exception (NIE). The latest proclamation is a result of the resurgent pandemic in the Schengen zone as well as the UK and Ireland, which is the main reason for the restoration of the recent COVID-19 E-2 Visa restrictions.

Who can apply for E-2 Visa?

An E-2 Visa is a Visa Classification that is available for foreign nationals who wish to live in the U.S. to develop and direct the operations of a business. The business can be large or small and an E-2 Visa is a great Visa option for those who want to start a business. In order to qualify for the Visa, applicants must meet specific requirements outlined in the requirements/eligibility section below.

COVID-19 E-2 Visa restrictions and National Interest Exceptions

On January 18, 2021 former president Trump issued a proclamation that terminated the Schengen, UK, Ireland travel ban from Mar. 2020 and the termination was to be effective on Jan. 26, 2021. Given the fact that COVID-19 cases are still rising in the countries that were affected by the original proclamation, on Jan. 25, 2021 President Biden issued a new proclamation that restricts entry of people who were physically present in the Schengen area region, UK, Ireland, Brazil, or South Africa.

Certain visa holders can apply for what is called a National Interest Exception (“NIE”), please see our NIE blog post to find out more. The following categories of travelers can apply for the exception:

If you are applying for a new E-2 investor visa, the Consulate will not only have to approve your E-2 visa, but will have to approve your NIE request as well, in order for you to be able to come to the U.S. If the Consulate approves your visa and also your NIE request, the Consulate will annotate your visa with the following “NIE under P.P. on Novel Coronavirus.”

Recent E-2 Visa trends we have been seeing at different U.S. Consulates:

Many Consulates do not let you know immediately at the interview whether they are approving the NIE request. In many cases, the Consular officers indicate to the E-2 visa applicant that the E-2 visa is “pre-approved” or that the Consular Officer will make a recommendation to the supervisor that the E-2 visa & NIE request are approved, but the officer does not make the determination on the NIE request during the visa interview. They may issue a 221(g) which is considered a technical denial. The Consulate will then usually get back to the E-2 visa applicant on whether the NIE request is approved within a few days.

Some Consulates seem to be taking the position that if the E-2 investor qualifies for the E-2 investor visa, the E-2 investor also qualifies for the NIE. For the NIE, you have to show that your entry to the U.S. will substantially benefit the U.S. economy. Many Consulates seem to determine that if you qualify for the E-2 investor visa (meaning you are coming to the U.S. to run a company and employee U.S. workers), your entry will substantially benefit the U.S. economy. The Consulates indicate that the eligibility for the E-2 visa and for the NIE are two separate determinations, but in reality, it seems that they are intertwined.

One Consulate previously indicated that the NIE approval is tied to the E-1/E-2 visa approval, meaning that if your E-1/E-2 visa is approved, the NIE will be automatically approved as well.

Recent reports indicate that some Consulates (g. the Consulates in Rome, Paris, London) may deny your E-2 visa petition if the Consular Officer determines that you are not eligible for the NIE. This means that even if you meet all the E-2 visa requirements, your E-2 petition could be denied solely because the officer makes a determination that you do not qualify for the NIE.

What should I do if my E-2 visa petition was rejected solely because the Consulate concluded that I do not qualify for the NIE?

You may want to look into the option of applying for the E-2 visa at a different Consulate or re-applying at the same Consulate. Please note that the situation at the Consulates is constantly evolving based on local country conditions, meaning internal guidelines and protocols may change so it is possible that if you re-apply at the same Consulate at a later time, the Consulate may approve your NIE & E-2 visa. You may also reach out to the Consulate that denied your visa & NIE request and ask for clarification or ask the Consulate to re-consider your E-2 petition and NIE request. Please note that each Consulate seems to be handling the issuance of E-2 visas and NIE requests differently and the protocols are also changing frequently. If you recently submitted an E-2 petition at a U.S. Consulate, it is important to follow up with the specific post closer to the time of your interview to understand the Consulate’s procedures at that time. Don’t forget that here you can find out whether the U.S. Consulates are currently processing E-2 visa applications and conducting E-2 visa interview. Additionally we highly recommend that you take a look at our article covering the National Interest Exception application.

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