State Department Limits Exceptions to European COVID Travel Bans, Adding Further Challenges for Nonimmigrant Workers and Business Travelers

The issue

On March 2, the State Department rescinded its previous policy on categories eligible for national interest exceptions (NIE) from the regional COVID-19 travel bans in effect for the European Schengen Area, the United Kingdom, and Ireland (Presidential Proclamation 10143), replacing it with a more restrictive policy. 

Previously, NIE eligibility for these countries included special consideration for certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents. The standard generally permitted officers to approve NIEs for these foreign nationals if they were deemed to contribute substantially to the U.S. economy. The new policy rescinds this standard, replacing it with a policy of issuing NIEs for business travel only if a foreign national seeks to provide “vital support for critical infrastructure.” The policy change could impact B, E, H, L, O and P visa applicants and visa holders and ESTA business travelers, along with others seeking to fit into one of the previously designated categories.

Foreign nationals traveling from the affected European countries who would have qualified under the prior standard for business or work travel may not qualify under the new one. However, NIE policies remain unchanged for those traveling as students, academics or for those seeking NIEs based on humanitarian circumstances or COVID-related activities, according to the State Department guidance.

As a reminder, even foreign nationals with valid visas in their passports (except for F and M students) must obtain an approved NIE in order to enter the United States after travel from the affected countries.

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 an identified 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, among others. Certain foreign nationals may be eligible for a discretionary waiver, called a national interest exception.

Revised National Interest Exception (NIE) categories for the Schengen Area, the UK and Ireland

Effective March 2, the State Department has revised the NIE policy for the Schengen Area, United Kingdom and Ireland to cover the following categories of travelers:

• Travelers seeking to provide vital support for critical infrastructure;
• Academics, J-1 students and journalists; and
• F-1 and M-1 students. F-1 and M-1 students with valid visas still do not need to contact a consular post to seek an individual NIE to travel. Students seeking to apply for a new F-1 or M-1 visa will continue to be automatically be considered for an NIE.

The State Department also states that it will continue to issue NIEs for humanitarian travel or for travel related to a public health response or to national security. There is no policy change for these NIE categories.

“Vital support for critical infrastructure” standard

U.S. consulates in affected European countries have begun issuing new visa applicant instructions to reflect the change in work and business travel NIE standards, stating the applicant must “provide vital support for critical infrastructure.” Specific instructions may differ by consular post but in general, “critical infrastructure” appears to mean sectors defined by the Department of Homeland Security, which include communications, financial services and information technology, along with a wide range of other industries. It is not yet clear what is meant by providing “vital support.”

In addition, several posts are advising applicants that senior executives and managers traveling to observe operations, hold regular meetings, or those who are traveling for routine operational travel may not be considered eligible for an NIE.

Impact on those who have received or are seeking NIEs

The State Department has confirmed that no previously issued visas or NIEs will be revoked due to the new policy. Foreign nationals with an approved NIE should make sure they are able to travel to the United States within the 30-day NIE validity (only for single entry to the United States). 

Foreign nationals seeking NIEs who have already scheduled visa appointments may receive notifications that their appointments have been cancelled as a result of the policy change. Visa appointments are always at risk of cancellation due to local COVID and staffing conditions, but as consulates adopt the new NIE policy, there could be an uptick in cancellations. Applicants would then need to establish that they satisfy the new NIE policy standard in order to reschedule their appointments.

Other travel considerations

Consular operations: Consular posts worldwide continue to operate with reduced staffing and visa services due to COVID precautions, as well as with significant visa application backlogs resulting from COVID shutdowns and travel bans. Local country restrictions continue to impact consular operations. Obtaining visa appointments is likely to continue to be challenging and foreign nationals should be prepared for the possibility of appointment cancellations and changing policies that could delay or prevent their return to the United States.

H/L/J nonimmigrant ban in effect through March 31: The nonimmigrant ban affecting certain H, L and J nonimmigrants (Presidential Proclamation 10052) remains in effect until its scheduled expiration on March 31, 2021. Foreign nationals must address all bans that impact visa issuance in order to obtain a visa cleared for travel to the United States.

CDC testing requirements for air travel: The Centers for Disease Control and Prevention requires a negative COVID test or evidence of recent COVID recovery for any international travel to the United States.

What the State Department policy change means for affected foreign nationals

The March 2 policy change narrows eligibility for work and business travel NIEs under the European travel bans, adding an additional hurdle for travel from these areas. It is not yet clear how the State Department will apply the revised standard of “vital support for critical infrastructure,” but it is expected that fewer NIEs will be issued under the new policy.

National interest exceptions cannot be granted while a foreign national is inside the United States, so further caution in planning travel abroad is advised. When undertaking international travel, foreign nationals should be prepared for the possibility of being delayed or prevented from returning to the United States for an extended period of time should government policies or local conditions change.

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