The US State Department recently announced new instructions on the Exceptions of National Interest for International Travelers to the United States. The instructions apply to travelers from Ireland, the Schengen area, and the UK. Here are the highlights:
- The previous NIE policy, which covered “certain technical experts and specialists, senior managers and executives, dealers and investors, professional athletes and their families”, has been repealed. The new policy applies to travelers planning to travel to the United States “to provide vital support for critical infrastructure”. Under imperative circumstances, even if the criterion of “vital support for critical infrastructures” cannot be met, travel to the United States can be considered in the national interest if it is important to create or maintain US jobs and work assisting directly cannot be done remotely. The NIE must be approved by the State Department in Washington, DC, rather than embassies and consulates, for this purpose.
- The guidelines do not define “critical infrastructure”, but the Cybersecurity & Infrastructure Security Agency of the Department of Homeland Security has published a list this includes the following industries: chemistry; commercial establishments; Communication; critical manufacturing; Dams; industrial base for defense; Emergency services; Energy; Financial services; Food and agriculture; Government institutions; Health care and public health; Information technology; Nuclear reactors, materials and waste; Transport; as well as water and sewer systems.
- The new policy will make it more difficult to obtain an NIE and will likely result in fewer NIE applications being granted. In addition, as the guidelines give consular officers discretion in deciding whether to apply exemptions, there may be a lack of coherence.
- The new guidelines do not affect the way in which Customs and Border Protection decides on NIE exemptions. Therefore, if a foreigner does not need a visa appointment at a consulate or embassy abroad, the foreigner can consider applying for an NIE exemption from the CBP at the airport where they want to apply for admission. However, not all CBP ports will review NIE waiver requests, so it is important to double-check before applying.
Nothing has changed in the criteria for entry as an academic, student or journalist.
As before, F-1 and M-1 students traveling from Ireland, the Schengen Area or the UK do not need NIEs. If they need a visa and are approved for it, they will be “automatically considered for a NIE to travel”.
The State Department will continue to allow qualified travelers to enter the United States “for humanitarian travel, public health response and national security purposes.” The new NIE policy is the same as the previous one in this regard.
If a visa or NIE was issued under the previous policy, it will not be revoked. The NIE is generally only valid for travel within 30 days and for entry into the United States.
Finally, the new NIE Guidance does not apply to Proclamation 10052which banned the entry of certain H, J and L-1 visa categories. Therefore, the current criteria for issuing an NIE continue to apply. In addition, Proclamation 10052 expired yesterday and apparently will not be extended, removing an obstacle to travel to the United States for these important categories of work visas for nonimmigrant countries.
Other international travel problems
As we previously reported, the President’s COVID-19 proclamations were issued in two categories:
- Those who generally banned people from entering the United States in COVID-19 hot spots within 14 days of their planned entry into the United States. The People’s Republic of China, Iran, the United Kingdom, Ireland, Brazil and most recently South Africa are currently affected; and the 26 Schengen countries.
- Those Issued to Protect the Jobs of U.S. Workers – Proclamation 10014 issued by President Trump and generally banned entry to new immigrant visa recipients. President Biden has withdrawn this proclamation. Proclamation 10052, as noted above, generally prohibited certain H-1B, H-2B, certain J-1, and L-1 nonimmigrant visa recipients from entering the United States. Proclamation 10052 expired yesterday.
There are exceptions and exceptions of national interest to these proclamations. A NIE must be obtained for each applicable proclamation category.
And do not forget. . .
The pandemic has generally resulted in US embassies and consulates operating with reduced staff around the world, which has resulted in significant delays in visa appointments and visa issuance. Circumstances vary from country to country and NIE requests may be handled differently depending on your country of origin. Travelers have to expect long waiting times for appointments and possible cancellations.
For any international trip to the United States, the Centers for Disease Control and Prevention requires either (1) a negative COVID test no more than three days prior to a traveller’s boarding, or (2) documents showing recovery from Show COVID-19. This CDC rule prompted President Trump to lift travel restrictions on COVID-19 from Brazil, Ireland, the Schengen area and the UK. However, President Biden reintroduced travel restrictions in Proclamation 10143. If President Biden later withdraws his proclamation, it will remove a significant barrier to travel to the United States.
