Travel Ban and National Interest Exception (NIE) Update: Changing Standards

Burr & Forman

Burr & Forman

On January 25, 2021, Presidential Proclamation (PP) 10143 extended PP 9993, which had suspended certain travel from those physically present in the Schengen Area and other countries since March 2020.  PP 10143 restricts entry into the U.S. for non-U.S. citizens physically present in certain countries (Schengen Area, United Kingdom and Ireland, Brazil and South Africa) for the 14-day period prior to U.S. entry.  The PP initially included a limited number of national interest exceptions (NIE) to the travel ban for certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.  As the pandemic persists, however, the Secretary of State has rescinded the previous NIE standard and implemented more stringent criteria for NIE issuance for those physically present in the Schengen Area, United Kingdom, and Ireland.

Effective March 2, 2021, to qualify for the NIE, applicants must show one of the following:

  1. They are married to a U.S. citizen or a U.S. Lawful Permanent Resident or are the parent of a minor U.S. citizen child under the age of 21;
  2. They will provide vital support of critical infrastructure sectors as defined by the Department of Homeland Security (DHS) (i.e., 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, transportation, and water/wastewater systems) or critical infrastructure linked supply chain. Vital support pertains to the installation, acquisition, maintenance, and essential safety training necessary to sustain the supply and production chains in the sectors, as well as other functions performed by specialists or other individuals essential to the sector; or
  3. Their travel would directly support the creation or retention of U.S. jobs. The proposed activity must physically take place in the U.S. and cannot be postponed or conducted remotely. This will be interpreted narrowly and the exception is designed for substantial job creation or retention.  The Department of State in Washington, D.C. will make this determination.

Other travelers in categories such as academics, students and journalists are not impacted by this change in standard and may still qualify for NIEs.  With implementation of the changing NIE standards, there have been reports of rescheduled or cancelled appointments.  A valid MRV fee may be used for a visa application in the country where it was purchased until December 31, 2021. Embassies and consulates around the world continue to experience a decrease in staffing and limited appointment capacity due to the pandemic which could result in continued delays.

One strategy is for travelers to request an emergency or expedite appointment if they believe they qualify.  For business travelers, the need for urgent business travel must be demonstrated.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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