Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of State (DOS) recently altered existing guidance on travel to the United States and further restricted business travel from certain countries, including the Schengen Area of Europe, United Kingdom, Ireland, Brazil, South Africa, People’s Republic of China, and Iran. The new guidance restricts the definition of eligibility for “National Interest Exemptions” for individual non-U.S. citizens to travel to the United States for business purposes, including employee visa holders.
At the beginning of the COVID-19 pandemic, the United States issued sweeping restrictions that prohibit the entry of most non-U.S. citizens (including visa holders) if they have been physically present in the Schengen Area of Europe, United Kingdom, Ireland, People’s Republic of China, Brazil, and Iran within 14 days prior to seeking entry. These restrictions do not apply to U.S. citizens, lawful permanents residents, and certain other categories (diplomats, those with government visas, spouses of a legal permanent resident) but do apply to most visa-holder employees, causing challenges for employers globally to facilitate cross-border work. The general entry restrictions remain in place. Upon taking office, President Biden renewed those restrictions and added South Africa to the list of restricted countries. The travel restrictions have no end date.
To alleviate the burden on essential travel to the United States, the DOS originally issued guidance on obtaining “National Interest Exemptions” (NIEs) at local consulates to overcome the restrictions in specific cases for urgent travel to the United States. That guidance allowed travel for individuals (such as employment visa holders) whose work served the “U.S. economic interest,” covering certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.
This guidance has now been rescinded and will no longer be honored at consulates. Senior executives and managers traveling to observe operations, hold regular meetings with U.S. clients, or conduct operational travel will no longer be considered eligible for an NIE.
At the same time, the secretary of state also made a new national interest determination covering certain travelers seeking to provide vital support for critical infrastructure. DOS will now accept these workers, as well as academics, students, and journalists (for whom NIE criteria has not changed). Specifically, DOS will permit entry of employees on an NIE if they will provide “vital support for critical infrastructure.” Generally, DHS-defined critical infrastructure sectors include chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare, public health, information technology, nuclear reactors, transportation, and water/wastewater systems sectors.
The DOS has not issued further details on how this standard will be applied; eligibility will likely depend on the specific factual circumstances of the case and consular discretion. Some consulates have issued updated guidance sheets on a post-specific basis.
Travelers who already have valid visas will continue to be required to verify that they qualify for an NIE with the local U.S. consulate or U.S. Customs and Border Protection (CBP) ports of entry1 before they are permitted to travel to the United States. The DOS will continue to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. In addition, academics (professors, research scholars, short-term scholars, and specialists), students, and journalists will be unaffected and continue to qualify for national interest exemptions. No previously issued visas or NIEs will be revoked due to the new policy.
We expect that, in line with the new guidance, most managerial and economic travel without a direct connection to performance of critical infrastructure operations will not be permitted and consulates will increasingly scrutinize eligibility for NIEs for sufficient connection to critical infrastructure work. This move is expected to further limit cross-border movement of visa holders and international business visitors. We will continue to monitor embassy-specific guidance.
1 Note that some ports require that an NIE request first be made to the Department of State.