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Department of State Tightens Requirements for National Interest Exceptions for Travelers from the Schengen Area, United Kingdom, and Ireland

5 Mar

On January 25th, President Biden issued Presidential Proclamation 10143, which renewed travel restrictions on travelers to the United States who have been present in the Schengen area of Europe, the United Kingdom, Ireland, China, or Brazil within the 14 days prior to boarding a flight to the United States. He also expanded the travel restriction to include travelers previously in South Africa within the 14 days prior to traveling to the United States. The Presidential Proclamation included certain exemptions as well as the possibility for exceptions in the national interest of the United States. 

Pursuant to Trump Era Presidential Proclamations restricting travel from the Schengen area, the United Kingdom, and Ireland, the Department of State offered guidance concerning the categories of travelers who might qualify for a National Interest Exception (NIE). Those categories included F-1 and M-1 students, as well as business travelers, Treaty Investors, academics, J-1 students, journalists, and Treaty Traders who have a valid visa, an ESTA authorization, or who are seeking to apply for a visa and may qualify for a NIE. The Department of State expressed its determination that “[g]ranting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship.”  The language was encouraging for applicants traveling from most European countries and suggested a presumption that they might be likely to qualify for a NIE by virtue of their visa category or purpose of travel. 

On Tuesday, March 2, in seeming acknowledgement of the virtually total lockdown in Europe, the Department of State rescinded its prior guidance and replaced it with guidance that appears to roll back some of the categories of travelers who might be likely to qualify for a NIE. 

Based on the new Department of State guidance, F-1 and M-1 students do not need to contact the embassy or consulate to seek a NIE. Other categories of travelers who will offer vital support to critical infrastructure sectors, academics, J-1 students, and journalists will be required to demonstrate their qualification for a NIE. E-1 and E-2 Treaty Traders and Treaty Investors are not mentioned in the new guidance; however, the Department of State indicated consular posts continue to grant NIEs for travelers seeking to enter the United States for purposes related to humanitarian travel, in connection with the public health response, and for purposes of national security.  

The Department of State guidance further leaves room for variation in NIE criteria based on specific consular posts, indicating any other travelers “who believe their travel to be in the United States national interest should also review the website of the nearest U.S. embassy or consulate for instruction on how to contact them.”  

While E-1 /E-2 Treaty Traders/Treaty Investors and other specialists may no longer readily qualify for a NIE at certain U.S. embassies and consulates, other consular posts may be more receptive. Applicants should be prepared for variation in criteria between and among consular posts. Applicants should also assume they will be required to apply at the appropriate consulate in their home country rather than seeking accommodation at a post in a third country. 

Given the changing landscape regarding NIE requirements, all nonimmigrants currently in the U.S. contemplating international travel should consider that they may not be able to return when originally planned. Travelers should also understand that various countries may implement new travel restrictions or changes in current travel restrictions with little or no advance notice. As a result, travelers should assume they may face difficulty and delay in their return from international travel. 

Pursuant to guidelines from the U.S. Centers for Disease Control, all travelers must obtain a negative Covid-19 test within three days before boarding a flight for the United States. If they have previously been infected, they must obtain a physician’s letter confirming their recovery. 

Foster will continue to monitor developments in connection with all new and continuing COVID-19 related travel restrictions and policies under the new administration and will make future updates available on our firm’s website at www.fosterglobal.com