In early 2021, pursuant to INA § 212(f) the President of the United States issued a proclamation continuing the suspension of entry of certain travelers located abroad in an effort to control the spread of COVID (the “novel coronavirus” or “COVID-19”). We have previously discussed COVID-related travel and visa issuance restrictions issued in 2020 here (IV ban) and here (NIV ban). The landscape of restrictions has changed dramatically over the last 16 months. At this time, there are multiple COVID-related geographic entry bans in effect. While there are exceptions to those bans, their beneficial effect is limited by the capacity of the US Department of State (“DOS”) to provide visa services in these uncertain times. We hope to see forward movement in these areas as the pandemic is brought under control.

The Lay of the Travel Ban Land

Geographic bans currently limit the entry of non-exempt individuals who have been physically present in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, Ireland, and India. Transiting through a banned country, even without exiting the airport, may count as physical presence within that country.

Certain groups of individuals, including, but not limited to, US citizens, lawful permanent residents, spouses and children of US citizens or lawful permanent residents, and diplomats, are specifically exempt from the entry bans. The bans also do not apply to an individual who has been granted a national interest exception (NIE).

It is worth noting that in the absence of an NIE, individuals with proper entry documentation who have been physically present in a “banned” country can seek entry into the U.S. after spending 14 days in a “non-banned” country.

NIEs may be issued by the DOS at U.S. embassies and consulates (“consular posts”) in conjunction with, or apart from, a visa interview.

What is a National Interest Exception?

A grant of a NIE is one path to being able to enter the U.S. after being physically present in a banned country. As of May 13, individuals seeking to provide vital support for critical infrastructure in the U.S. may qualify for a National Interest Exception (NIE). Individuals may also seek an NIE due to job creation or economic impact in the U.S. In these sorts of NIE requests, it is important to establish why the applicant is needed on U.S. soil. Dependents of individuals who would qualify for an NIE may also request an NIE even if the principal visa holder is in the U.S. Other individuals may also be eligible for an NIE, so it is important to contact a qualified immigration attorney when considering this option.

An NIE can be used to travel to the U.S., with an existing valid visa, if the traveler has been physically present in a banned country in the 14 days prior to entering the U.S. It is vitally important to review local consular procedures for seeking an NIE, e.g., NIE procedures for a valid visa holder at the U.S. Embassy in Belgium. An NIE is generally valid for one entry into the U.S., and U.S. Customs and Border Protection will honor the NIE for 30 days from the date of issuance. The NIE may be noted on the face of a new visa or it might be granted in a separate correspondence, such as an email.

As of May 13, unlike other valid visa holders, students with valid F-1 visas subject to these proclamations do not need to contact an embassy or consulate for an NIE; they may enter the U.S. no earlier than 30 days before the start (or resumption) of their academic program or optional practical training as long it will start on August 1, 2021 or later. We certainly hope this is the beginning of more categorical travel NIEs, as that would relieve some of the burden on already overwhelmed consular posts.

Visa Services

In March 2020, DOS suspended its routine, non-emergency visa services at all consular posts for the safety of DOS employees and to limit the global spread of COVID. In July 2020, DOS announced a phased resumption of consular services, which is ongoing as of the writing of this update. Despite facing a nearly half-million case backlog, there is no date certain for a full return to consular services. Nonetheless, all posts are providing emergency and mission-critical visa services.

Consular posts are prioritizing services in three broad categories: first American citizens, then immigrant visa (IV) applicants, and finally non-immigrant visa (NIV) applicants, with tiers within the groups as well. For example, the processing of immigrant visas for the spouses and children of U.S. citizens is an extremely high priority, especially when a child might be at risk of become ineligible due to age. NIV applications for those with urgent travel needs or for persons providing critical services (such as individuals coming to assist with the U.S. response to the COVID-19 pandemic and workers who are essential to the American food supply) are prioritized over visa applications for tourism.

Expediting a Visa Appointment

Consular posts may provide expedited visa interview appointments for humanitarian reasons, medical needs, death, urgent business travel, or another similar circumstance that could not be predicted in advance. In order to obtain an expedited interview appointment for an NIV, the applicant must generally first pay the visa fee and schedule a “regular” appointment, even if it is far into the future. If the visa applicant has an urgent need to travel to the U.S., e.g., as a medical professional, the applicant may request an expedited interview date through the appointment scheduling portal, providing all the necessary information to substantiate the expedite request. IV appointments follow their own expedite procedures.

A Few Related Notes

In order to lessen the load on posts and applicants, DOS has temporarily expanded visa interview waiver eligibility to renewal applicants whose visas expired in the last 48 months.

The Machine Readable Visa (MRV) fee is valid within one year of the date of payment and may be used to schedule a visa appointment in the country where it was purchased. Sensitive to the reduction in visa services, DOS has extended the validity of MRV fees until September 30, 2022.

While not the subject of this blog, there is a bevy of litigation in relation to consular processing, including a case recently filed that challenges the DOS interpretation that the entry bans necessitate a ban on visa issuance.

Final Thoughts

Because of the limited consular services over the past year, there is a large number of unused immigrant visas available this year. We are heartened to see that all signs are pointing to the resumption of normal consular services with the benefit of efficiencies developed during the height of the pandemic.

We continue to caution against international travel due to the COVID-19 pandemic. Given that entry, visa, quarantine, and COVID testing rules change daily, global mobility is challenging. Individuals who have traveled abroad may become unable to return to the U.S. for an uncertain period of time. Because the world and rules could change while a traveler is overseas, it is best to consult with an experienced immigration attorney before embarking on international travel.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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