State Department Expands Exceptions to Regional COVID Travel Bans, But Consular Challenges Remain

The issue

The State Department has updated its policy on categories of travelers eligible for national interest exceptions (NIEs) from the regional COVID-19 travel bans in effect for Brazil, China, Iran, and South Africa. The NIE categories for these bans now align with those already in place for the regional bans barring travel from Ireland, the European Union and the Schengen Area. Starting April 26, 2021, the NIE categories for all existing regional bans include:

• Foreign nationals seeking to provide vital support for critical infrastructure, which could be travel pursuant to H, L, O, B, Visa Waiver, or other nonimmigrant business or work categories;
• Journalists;
• F and M students; and
• Certain academics covered by exchange visitor programs.  

These categories of travelers had previously been eligible for NIEs under the regional bans for Ireland, the United Kingdom, and Schengen Area only.

Existing policy for all of the COVID regional bans already permits certain exchange program visitors to qualify for an NIE, including certain J-1 au pairs, interns, trainees, and specialized teachers, among others. Foreign nationals have also been able apply for an NIE if they are seeking to enter the United States for purposes related to humanitarian travel, a public health response, or national security.

Background on regional COVID-19 travel bans

The COVID-19 regional public health bans restrict travel for foreign nationals who have been physically present in a designated country within 14 days of seeking entry to the United States and who do not qualify for a ban exception. Transit through an airport in an affected country counts as presence in that country. Certain categories of individuals are not subject to or are explicitly exempt from the bans, including U.S. citizens and lawful permanent residents (green card holders) and their immediate family members, and immigrant visa and fiancé(e) visa applicants, among others. In addition, certain foreign nationals may be eligible for a discretionary waiver, called a national interest exception or NIE.

A closer look at the new and existing NIE policy

The above categories of travelers had previously only been eligible for NIEs under the COVID regional bans for Ireland, the United Kingdom, and Schengen Area and now have been expanded to apply to all regional bans. Some important points on the new and existing NIE policy follow:

Vital support for critical infrastructure: The “vital support for critical infrastructure” standard has been in effect for the European bans since March 2 when the State Department considerably narrowed NIE eligibility for work and business travel. Under this new standard, some senior-level managers and executive activities that would have been previously eligible for NIEs, no longer qualify. Travel for routine meetings or operational oversight generally does not qualify as “vital support,” regardless of a foreign national’s seniority within an organization. Employment in a critical infrastructure sector alone will not meet the standard. Expansion of this category to the non-European bans may open eligibility to a wider group of travelers, but the standard for eligibility is expected to remain high.

Students: Under the new policy, students subject to a ban due to their presence in Brazil, China, Iran, or South Africa, may qualify for an NIE only if their academic program begins August 1, 2021 or later. Students subject to the European regional COVID bans do not need to meet this requirement.

As with the European ban policy, however, F-1 and M-1 students with valid visas do not need to apply for an NIE with the U.S. government before travel to the United States. Rather, they may travel without further COVID-related permissions, and may enter the United States no earlier than 30 days before the start of their academic studies.

Foreign nationals with valid visas: Except for F-1 and M-1 students, foreign nationals in NIE-eligible categories who have a valid visa in the appropriate status or a valid ESTA authorization, must apply for an NIE before travel. The request is made to a U.S. consulate or in limited circumstances, to a Customs and Border Protection port of entry. If an NIE is approved, the individual may travel on the valid visa or ESTA authorization.

What the new policy means for affected foreign nationals

A greater number of foreign nationals will be eligible for NIEs under the new State Department policy. However, reduced capacity and steep visa application backlogs at most U.S. consular posts are likely to continue to delay visa appointments and travel. Visa applications are generally prioritized by consular posts in accordance with the agency’s guidance on their phased resumption of visa services. The State Department prioritizes U.S. citizen services first, followed by immigrant visa processing, and then nonimmigrant visa processing. Visa appointments can be at risk of cancellation for a number of reasons, including local COVID and staffing conditions.

Foreign nationals are advised to plan travel with flexibility in the context of the ongoing COVID emergency; changes to consular operations and COVID travel restrictions may occur with little or no notice. Further, as we have seen in the recent past, travel ban NIE eligibility criteria itself may change with no notice, which can substantially delay or prevent reentry to the United States.

As a reminder, the Centers for Disease Control and Prevention requires a negative COVID test or evidence of recent COVID recovery for any international air travel to the United States.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.