To reduce the backlogs of National Interest Exception (NIE) applications required by the Presidential Proclamations (Proclamations) regarding travel from designated countries to the U.S. due to the pandemic, the U.S. Department of State (DOS) announced on July 6, 2021, that it will extend the validity period of NIEs from 30 days to 12 months from the approval date. Additionally, instead of restricting the use of NIEs to one entry to the U.S., travelers using NIEs granted by DOS may now use them for multiple entries to the U.S. during the applicable one-year validity period in limited circumstances as described below. Although this announcement was welcome news for some traveling from one of the countries or regions subject to the travel bans, there are limitations that NIE-holders must be aware of before traveling to the U.S. in reliance on an NIE granted by DOS.
The current travel bans in place that apply to travel to the U.S. within 14 days from being physically present in certain countries affected by the pandemic based on Proclamations are listed below. There are limited exemptions from the Proclamations in effect.
|People’s Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau
|February 2, 2020, 5 pm EDT
Immigrants and Nonimmigrants
|9984 – 85 Fed. Reg. 6709
|Islamic Republic of Iran
|March 2, 2020, 5 pm EDT
Immigrants and Nonimmigrants
|9992 – 85 Fed. Reg. 12855
|Schengen Area, United Kingdom and Ireland,  the Federative Republic of Brazil, and the Republic of South Africa
|January 26, 2021, 12:01 am EDT
Immigrants and Nonimmigrants
|10143 – 86 Fed. Reg. 7467
|Republic of India
|May 4, 2021, 12:01 am EDT
|10199 – 86 Fed. Reg. 24297
The Proclamations do not apply to:
- U.S. citizens;
- U.S. lawful permanent residents;
- Spouses and minor children of U.S. citizens or lawful permanent residents;
- Parents or legal guardians of a U.S. citizen or lawful permanent resident unmarried minor child;
- Siblings of a U.S. citizen or lawful permanent resident child, provided both are unmarried and under the age of 21;
- Air and sea crewmembers;
- U.S. non-citizen nationals (not applicable to Proclamations 9984 (China) and 9992(Iran));
- Any noncitizen who is a member of the U.S. Armed Forces and any noncitizen who is a spouse or child of a member of the U.S. Armed Forces;
- Certain U.S. Government invitees for the purpose of the containment or mitigation of COVID-19; and,
- Certain travelers whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
In addition, three categories of travelers listed below are automatically considered as eligible for an NIE at a port of entry by U.S. Customs and Border Protection (CBP) and U.S. ports of entry and do not require advance approval of an NIE from a U.S. Embassy or Consulate abroad:
- Immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel);
- Fiancé(e)s of U.S. citizens and their dependents (K visas);
- Students (F and M visas) as described here; and
- New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021, or after, including optional practical training (OPT).
Limitations to Note:
There are two significant limitations to the DOS July 6, 2021 policy announcement that NIE-holders must consider before traveling to the U.S. from one of the restricted countries under the Proclamations.
First, at this time, the new policy only applies to NIEs issued by a U.S. Consulate or Embassy abroad. Thus, foreign nationals traveling with an NIE issued by CBP DO NOT benefit from any extension of validity or increase in the number of entries regarding an NIE granted by CBP.
Second, and perhaps most importantly, the new policy only applies if the person uses the NIE for the purpose originally granted. The DOS announcement does not use the word “same,” but it appears implied. Thus, the new policy only applies to trips to the U.S. for the “same” purpose for which the initial NIE was granted. It appears that DOS did not coordinate its announcement on the extension of NIE validity with CBP. CBP has yet to provide official public guidance regarding what documentation will be acceptable to prove that the DOS-granted NIE is being used for the purpose originally granted for admission to the U.S. It is advisable for the NIE grantee to be ready to present to a CBP officer:
- Supporting documentation provided to DOS to request the NIE.
- Supporting documentation regarding how the NIE granted in the prior 12 months is being used to apply to enter the U.S. for the purpose it was originally granted.
Travelers should be warned as to the ongoing uncertainty of how CBP officers will assess whether an NIE issued by the DOS will be honored for admission to the U.S. for the “purpose granted.”
Another important development as to the application of NIE requirements is that some consular posts located in countries not subject to the health-based travel proclamations will hold passports of third-country national (TCN) visa applicants and delay visa issuance until the applicant has spent 14 days in the country not subject to one of the health-based proclamations versus adjudicate an NIE.
In addition, CBP is typically not accepting initial NIE requests except in exigent circumstances post a consular denial, which reflects a shift of the NIE burden in large part to the under-staffed DOS. CBP continues to accept humanitarian, and emergency NIE requests, however, without imposing the receipt of the consular denial of an NIE first.
Bottom line, travelers should always check in advance of travel to the U.S. when an NIE issued by a DOS consular officer will be used to request admission to the U.S. to consider current developments regarding the CBP policy being applied. In addition, they should check if a consular post not located in an area subject to one of the Proclamations will timely adjudicate an NIE or if the consular post’s practice is to wait to issue a visa until the applicant has been present for fourteen days in the country in which the post is located.
 The Schengen Area comprises 26 European states: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
 The proclamation did not apply to overseas territories of the United Kingdom outside of Europe.
ABOUT THE AUTHORS
Kathleen Campbell Walker is the co-chair of Dickinson Wright’s immigration practice. She is a former national president and general counsel of the American Immigration Lawyers Association. Her email address is firstname.lastname@example.org and her bio is here.