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Revisions to National Interest Exceptions to Schengen Travel Ban

On April 30, 2021, the Department of State issued updated guidance on the National Interest Exception (NIE) for COVID-related travel bans to the United States. Previously, the more restrictive March 2021 NIE guidance was only applicable for individuals who were present in the Schengen Area, the U.K. or Ireland. The April 30 update uniformly extends the March 2021 NIE guidance to all countries that are subject to a COVID-related travel ban. This now includes the Schengen Area, the U.K., Ireland, China, Iran, Brazil, South Africa, and India.

By way of background, numerous COVID-related travel bans have been implemented by the Trump and Biden administrations over the past 17 months. This travel ban requires that individuals present in any of the above regions or countries either obtain a waiver of the ban or quarantine in a third country for 14 days prior to entering the United States. There are a number of individuals who are exempt from this ban.

The March 2021 National Interest Exception (NIE) criteria had previously only applied to individuals in the Schengen Area, the U.K., or Ireland. The April 30 update makes the NIE update universal to all countries with a COVID-related travel ban.

Our immigration resources page has a broad overview on all current U.S. travel bans

March 2021 Revisions to Department of State Policy for National Interest Exception

On March 2, 2021, the Secretary of State rescinded the previous NIE criteria regarding travelers eligible for a waiver of the COVID-related travel ban for the Schengen region. The new NIE criteria apply to travelers from all countries for which there is a COVID-related travel ban.

The new criteria allow for waivers for certain travelers who will provide “vital support for critical infrastructure.” However, the parameters of what is included in “vital support for critical infrastructure” are not specifically stated in this guidance. The new guidance rescinds the following individuals from eligibility for an NIE waiver: technical specialists, senior managers and executives, E-1 and E-2 treaty traders and investors, and professional athletes.

While the current guidance is silent on “critical infrastructure,” the Department of State has defined “Critical Infrastructure Sectors” in similar contexts to include the following industries: chemical, communications, 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 systems.

In addition, travelers to the U.S. who remain eligible to apply for an NIE waiver include academics, students, journalists, humanitarian travelers, public health responders, and those travelers who will benefit national security.

More specifically, the Department of State has provided the following exemptions for all COVID-related travel bans to the U.S:

  • F-1 and M-1 students with a valid visa who are entering the U.S. to begin or continue an academic program that starts on August 1, 2021 or later do not need to apply for a waiver and may enter the U.S. up to 30 days prior to their program start date;
  • F-1 and M-1 students who are entering the U.S. to begin or continue an academic program that starts on August 1, 2021 or later and who need a visa will be automatically considered for a National Interest Exception;
  • J-1 exchange visitors in a number of categories, as described in the Department of State’s update.

Immediate Action Steps for Employers/Employees Impacted by the Travel Ban

Anyone who is impacted by the travel ban should contact their Mintz immigration attorney to discuss the impact of the travel ban and guidance for obtaining an NIE waiver.

The impact of COVID on international travel and the issuance of visas at consular posts abroad is a continually changing and fluid situation. We expect the U.S. Departments of State and Homeland Security to issue further information about travel to the U.S., and we will continue to provide guidance as new information becomes available.

 

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Authors

Barbara Chin

Practice Group Associate

Barbara Chin advises Mintz clients on corporate and business immigration matters. She has served as counsel for Fortune 500 companies on all aspects of employment-based immigrant and nonimmigrant visas. Before joining Mintz, Barbara was as an assistant district attorney in Massachusetts.

John F. Quill

Member / Chair, Immigration Practice

John’s practice encompasses all aspects of immigration and nationality law. John draws on over two decades of experience to help companies and their employees obtain nonimmigrant visas, including B, E, H, J, L, O, and TN visas. He also handles applications for PERM labor certification; extraordinary ability, outstanding researcher, and national interest waiver petitions; adjustment of status procedures; consular processing; and naturalization.