New guidance on National Interest Exceptions will make international travel to U.S. more of a challenge

The U.S. State Department recently issued new guidance on the National Interest Exceptions for international travelers to the United States. The guidance applies to inbound travelers from Ireland, the Schengen Area, and the United Kingdom. Here are the highlights:

• The previous NIE policy, which covered “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents,” has been rescinded. The new policy applies to travelers seeking to enter the United States “to provide vital support for critical infrastructure.” In compelling circumstances, even where the “vital support of critical infrastructure” criterion cannot be met, travel to the United States may be considered to be in the national interest if it is vital to directly support the creation or retention of U.S. jobs and the work cannot be done remotely. The NIE for this purpose must be approved by the State Department in Washington, D.C., rather than by embassies and consulates.
• The guidance does not define “critical infrastructure,” but the Cybersecurity & Infrastructure Security Agency of the Department of Homeland Security has published a list that includes the following sectors of the economy: chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government facilities; health care and public health; information technology; nuclear reactors, materials, and waste; transportation; and water and wastewater systems.
• The new policy will make it more difficult to obtain an NIE and is likely to result in fewer NIE requests being granted. Moreover, because the guidance gives discretion to consular officers to determine whether exceptions apply, there may be a lack of consistency.
• The new guidance does not affect the manner in which Customs and Border Protection adjudicates NIE waivers. Therefore, if a foreign national does not require a visa appointment at a consulate or embassy abroad, the foreign national may want to consider applying for an NIE waiver with the CBP at the airport at which he or she plans to apply for admission. However, not all CBP ports are reviewing NIE waiver requests, so it important to check on this before applying.

There has been no change to the criteria for travelers entering as academics, students, or journalists.

As before, F-1 and M-1 students traveling from Ireland, the Schengen Area, or the United Kingdom will not require NIEs. If they need and are approved for a visa, they “will automatically be considered for an NIE to travel.”

The State Department also will continue to allow qualified travelers to seek entry to the United States “for purposes related to humanitarian travel, public health response, and national security.”  The new NIE policy is the same as the prior policy in this respect.

If a visa or NIE was issued under the prior policy, it will not be revoked. The NIE will generally be valid only for travel within 30 days and for one entry into the United States.

Finally, the new NIE Guidance does not apply to Proclamation 10052, which banned the entry of certain H, J, and L-1 visa categories. Therefore, the current criteria for issuance of an NIE continue to apply. In addition, Proclamation 10052 expired yesterday and apparently will not be extended, eliminating an obstacle to travel to the United States for these important non-immigrant work visa categories.

Other international travel issues

As we have previously reported, COVID-19 Presidential Proclamations have been issued in two categories:

• Those that generally prohibited entry into the United States by persons who were in COVID-19 “hot spots” within 14 days of their planned entry into the United States. The affected countries are currently the People’s Republic of China, Iran, the United Kingdom, Ireland, Brazil, and most recently added, South Africa; and the 26 Schengen nations.
• Those that were issued to protect the jobs of U.S. workers – Proclamation 10014 was issued by President Trump and generally barred the entry of recipients of new immigrant visas. President Biden has rescinded this proclamation. Proclamation 10052, as already noted, generally barred the entry into the United States of certain recipients of nonimmigrant H-1B, H-2B, certain J-1, and L-1 visas. Proclamation 10052 expired yesterday.

There are exemptions and National Interest Exceptions to these Proclamations. An NIE must be obtained for each Proclamation category that applies.

And don’t forget . . .

The pandemic generally has caused U.S. embassies and consulates worldwide to operate with reduced staffing, which has resulted in significant delays in visa appointments and visa issuances. Circumstances vary from one country to the next, and NIE requests may be handled differently depending on the country of origin. Travelers should expect long waits for appointments and possible cancellations.

For any international travel to the United States, the Centers for Disease Control and Prevention requires either (1) a negative COVID test no more than three days before a traveler boards a flight, or (2) presentation of documentation showing recovery from COVID-19. This CDC rule led President Trump to rescind COVID-19 travel restrictions from Brazil, Ireland, the Schengen Area, and the United Kingdom. However, President Biden reinstated the travel restrictions in Proclamation 10143. If President Biden later rescinds his Proclamation, that will eliminate a significant obstacle to travel to the United States.

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