Earlier this year, President Trump signed a series of presidential proclamations banning the entry of foreign nationals who were present in China, Iran, countries in the Schengen area, the United Kingdom and Ireland, and Brazil in the 14 days preceding their entry into the United States, with limited exceptions. These exceptions include a general National Interest Exception (NIE) for impacted travelers who could show that their entry would be in the national interest as determined by the Department of State (DOS) or the Department of Homeland Security (DHS).
Until recently, there was almost no guidance on how to qualify for a NIE under the COVID-19 travel bans. However, the DOS recently announced that certain travelers from the Schengen countries, the United Kingdom and Ireland may qualify for a NIE. The announcement specifically clarifies that business travelers (B-1 or ESTA), treaty traders and investors (E-1 / E-2) and academics and students (F-1, M-1 or J-1) from impacted countries in Europe may qualify for NIEs because these types of travel assist with U.S. economic recovery and help bolster US-European transatlantic relationships.
The DOS’s announcement is welcomed news for many, who now have some additional reassurances that their purpose for travel would be deemed in the national interest. However, applicants should be mindful that NIE approval is not guaranteed in every case. For example, while it appears that F-1 and M-1 students from Europe are being automatically granted NIE waivers, all other mentioned categories of travelers (i.e. business travelers, investors, academics, treaty traders and J-1 students) must contact their local consulate or embassy to first apply for and obtain a NIE before travelling. Separately, consular posts continue to process NIE requests for all other eligible applicants whose travel is related to humanitarian, public health response and national security reasons. These include impacted travelers from China, Iran and Brazil to whom the recent DOS announcement does not necessarily apply.
Since the criteria for NIE eligibility remains relatively undefined, applications will continue to be processed on a highly discretionary, case-by-case basis. The strongest applicants will be able to clearly demonstrate why their entry would positively impact US national security, COVID-19 reduction efforts and/or national economic recovery. In addition, consular policies and practices often vary from one post to another, which can lead to some level of unpredictability and differing outcomes. For example, some NIE approvals may be good for multiple entries into the United States while others may be valid only for a limited single entry within 30 days of approval.
If you are interested in applying for a National Interest Exception to the ongoing COVID-19 travel ban, please contact Simone von Werden Kraus (firstname.lastname@example.org) or Christopher De Los Reyes (email@example.com) for assistance. You may also contact any member of the SGR Global Immigration & Mobility Practice Group.