March 22, 2021

Effective March 3, 2021, the Department of State has issued guidance further restricting the issuance of National Interest Exceptions to the entry ban for travelers coming to the US from the Schengen area, UK & Ireland under PP 10143 (extending PP 9943), which restricts entry into the United States on E, H, L, O or P visas.

The previous NIE guidance allowed for certain technical experts and specialists, senior executives and managers, treaty traders and investors, and professional athletes. Earlier guidance has been updated and refined. It is important for potential travelers to understand the current guidance, because US consular posts in countries in the Schengen area, plus the UK & Ireland, are not issuing visas if they cannot approve the applicant for an NIE. The Department of State is being sued in federal court for this, as the relevant proclamations constitute a ban on entry into the United States, and not a ban on visa issuance.

  • Any NIE already issued remains valid, but NIEs are valid for 30 days & ONE entry only – each trip requires a new NIE & new justification (travelers who got one NIE easily may be rudely surprised if they leave the US a 2d time and find they cannot return)

  • F, M, C-1/D and A or G visa travelers do not need a National Interest Exception

  • Adult US citizens & Lawful Permanent Residents remain exempt, as do parents of minor US citizen or Lawful Permanent Resident children

  • Carve-out exceptions for I journalists and J academic & research scholars continue

  • Humanitarian exceptions continue, such as for J-1 au pairs of families where parents are involved in direct treatment of COVID-19 patients

  • Exceptions for persons traveling in any visa category to engage in direct treatment of COVID-19 patients or to conduct public health research related to the pandemic continue

  • The general entry ban on certain H, L & J nonimmigrant visas – PP 10052, extended by PP 10131 –also remains in force until 3/31/2021, and may be extended.

  • Certain categories no longer automatically qualify for NIEs granted at/by consular posts such as professional athletes traveling under P or B status – Now, there is an added requirement for the relevant sports league or competition sponsor to apply in advance to Customs & Border Protection to prove what their current COVID-testing and screening protocols are.

The “substantial economic benefit” standard is replaced by a far more restrictive standard: NIE applicants now must show that they provide “vital support of critical infrastructure sectors as defined by DHS or critical infrastructure-linked supply chain”, Previously, any E-1 or E-2 Treaty Trader or Investor, H-1B Professional or L-1 Intracompany Transferee was likely to be granted an NIE if they could demonstrate that their entry into the US would “provide substantial economic benefit.” Now, under the new guidelines, senior managers and executives engaged in routine operational travel will no longer be considered eligible for NIE, and NIE applications submitted to US Consulates by prospective business travelers still in the United States will not be considered. Business travelers seeking entry on E, H or L visas will need to demonstrate that their work in the US will provide “vital support of critical infrastructure sectors,” or “critical infrastructure-linked supply chain support” and “directly support the creation or retention of US jobs.” Recent anecdotal information indicates that applications for a National Interest Exception to a U.S. Embassy or Consulate based on job-creation or job-retention in a critical sector are forwarded to the Department of State in Washington, DC, rather than adjudicated locally at the consular post, so those cases take longer to yield a result.

The new list of 16 sectors provided by the DHS Cybersecurity and Infrastructure Security Agency lists those industries whose assets, systems and networks are deemed so vital to the US that their incapacitation or destruction would have a debilitating effect on national security, economic security, public health or safety, or any combination thereof.

The DHS/CISA list of critical infrastructure related industry sectors is:

  • Chemical Sector
  • Commercial Facilities Sector*
  • Communications Sector
  • Critical Manufacturing Sector
  • Dams
  • Defense Industrial Bases
  • Emergency Services Sector
  • Energy Sector
  • Financial Services Sector
  • Food & Agriculture Sector
  • Government Facilities
  • Healthcare & Public Health Sector
  • Information Technology Sector
  • Nuclear Reactors, Materials & Waste Sector
  • Transportation Systems Sector
  • Water & Wastewater Sector

*Clarifying information indicates that the Commercial Facilities Sector includes:

  • Entertainment & Media (e.g., broadcast, motion picture & recording studios)
  • Gaming (e.. casinos)
  • Lodging (e.g. hotels, motels, corporate housing)
  • Outdoor Events (e.g. theme & amusement parks, fairs, campgrounds etc)
  • Public Assembly (e.g. arenas, stadiums, zoos, aquariums, museums, convention centers)
  • Real Estate (e.g. office & apartment buildings, condos, mixed-use, self-storage facilities)
  • Retail (e.g. retail centers & districts, shopping malls & plazas)
  • Sports Leagues

This new guidance is likely to make NIEs substantially more challenging to obtain, and business travelers who have previously obtained one or more NIEs with only a modicum of effort may suddenly find themselves stuck abroad unable to obtain another. Travelers engaged in essential business travel should carefully peruse the CISA document (linked above) to determine whether they are working in an industry sector deemed critical.