Navigating the Travel Bans Jungle: National Interest Exceptions Checklist for Covid Travel Bans in the United States | Sheppard Mullin Richter & Hampton LLP

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Travel bans imposed by the US government during the national Covid-19 pandemic have created enormous logistical challenges for anyone seeking to travel to the United States from a country on the travel ban list. Even today, there is still a great deal of confusion as to who is subject to the travel ban, what the exceptions are and how to go about requesting a waiver of the National Interest Exception (NIE). The checklist below is intended to help simplify a process, albeit complicated. Of course, most U.S. consulates still operate with limited capacity, so significant delays in visa waivers and stamping are still the norm.

  • Latest update from the US State Department: May 27, 2021
  • Countries with travel bans: The Schengen area, the United Kingdom, Ireland, China, India, Brazil, South Africa and Iran.
  • Schengen countries include: 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.
  • Family exemptions: US citizens, lawful permanent residents, and some immediate family members. See below for the full list.
  • 14 day exemption: There is an exemption for those who spend 14 days outside one of the “forbidden countries” (ie spending 14 days in Mexico or the Caribbean).
  • Physical presence at the time of the request: Must be in the countryside where the NIE will be filed when submitting the NIE application to the U.S. Embassy or Consulate.
  • NIE Travel: Good for only one entry within 30 days resignation.
  • Family members: Also included with the approval of the principal applicant (if disclosed to the US Consulate at time of filing). Family members are strongly encouraged to travel at the same time as the principal applicant to avoid issues at the point of entry, as NIE data regarding family members may not appear in the US Customs and Tax system. border patrol (CBP). If they are to travel separately, they must carry a copy of the US Consulate’s NIE approval email, the principal applicant’s passport identity page, visa or ESTA, marriage certificate with translation for spouses and birth certificates with translations for children.
  • NIE Criteria to prove to the US Embassy: Those seeking to provide vital support or executive direction for critical infrastructure or for significant economic activity in the United States. In addition, journalists; students and some academics covered by D-1 visitor exchange programs; immigrants; and engaged couples can now claim a NIE.
  • ESTA trip: Check the local US Consulate for NIE filing instructions.
  • Visa requirement: Need to request a shipment based on an NIE first.
  • Visa which has just been issued: The NIE approval should already be written on the visa for a single entry within 30 days. Will need a separate NIE approval for each subsequent trip.
  • Have a visa but it was issued more than 30 days ago: Need a new NIE approval for each entry, which will be valid for 30 days.
  • Visa stamp in another country:: If you are traveling from a prohibited country, a person must wait 10 days in that country before entering a United States consulate for the visa. Appointments are limited for third country nationals or nationals not residing in the jurisdiction. May need to expedite request if appointment is several months away.
  • Air travel from Mexico and Canada to the United States: There is currently no travel ban in place, so no NIE is required.
  • Travel from Canada / Mexico via the land border with the United States: Only essential travel is allowed – those with work visas, USCs, LPRs, etc. There is no NIE process available.
  • Passport expiration: Make sure your passport is valid for at least 6 months beyond your intended stay, otherwise US Customs and Border Protection (CBP) may refuse entry or severely limit the period of stay.
  • Covid test negative: The US Center for Disease Control (CDC) and most airlines require a negative Covid test performed within 72 hours of flying to and from the United States
  • Quarantine on arrival in the United States: Check the local requirements in the state, county, and city you’re traveling to: Quarantine requirements vary from zero to 14 days depending on local conditions.

Exemptions from the travel ban (NIE not required):

  • American Citizens (aka USC)
  • US nationals
  • Legal Permanent Residents of the United States (Green Card or “LPR” Cardholders)
  • Spouses of USC and LPR
  • Children USCs and LPRs who are single and under the age of 21
  • USC and LPR siblings under 21
  • Parent or legal guardian of a USC or LPR child who is unmarried and under the age of 21
  • Covid-19 healthcare workers and researchers
  • Airline and maritime crew members
  • Ambassadors, diplomats, UN employees, etc.
  • Journalists
  • Entry that would support important law enforcement objectives in the United States
  • Anyone coming to the United States in the national interest. This may involve an interested government agency making the request.
  • Students With valid F-1 or M-1 visas traveling to start or continue an academic program, you do not need to contact the U.S. Embassy to search for an individual NIE to travel. They can enter the United States no earlier than 30 days before the start of their academic program. NIE eligibility for students who have been present in Brazil, China, India, Iran or South Africa only applies to programs that start on or after August 1, 2021.
  • Very select day-to-day exchange visitors, including au pairs:
  • Anyone spending 14 days outside a prohibited country

NIE APPLICATION CHECKLIST

  1. Confirm the country is on the Covid travel ban list.
  2. Confirm that no exemptions apply.
  3. Check the local U.S. Embassy or Consulate website for specific filing instructions for the national interest exception to the Covid travel ban.
  4. Some US embassies require you to make a short request on their portal and will send you a formal questionnaire to include with your NIE file. Others ask you to email them all the information up front. Other embassies indicate that you must first request an expedited appointment with NIE justification through the State Department’s appointment system.
  5. Send your NIE request by email to the email address specified for your applicable US Consulate:
  • In the subject line, indicate: EXCEPTION OF NATIONAL INTEREST – LAST NAME.
  • Attach the identity page of the principal applicant’s passport.
  • Enclose the passports of the spouse and minor children if they are traveling with the principal.
  • Attach the current ESTA registration if you wish to travel with ESTA, or a copy of your current visa if you have already obtained it. Ditto with the spouse and children if you are traveling with the principal.
  • Attach a signed NIE letter of support, usually from a US company, explaining why the proposed trip will provide vital support or executive direction for critical infrastructure or for significant economic activity in the United States.
  • Provide the following information in the body of the email:
  • Name as it appears on the passport
  • Date of birth (XX-MON-XXXX or 01-JAN-1999)
  • Country and city of birth
  • Passport #
  • Passport issue date
  • Reason for travel
  • Expected travel date
  • Suggested route
  • A scanned copy of the passport biographical data page in PDF and upright.
  • A scanned copy of the valid ESTA or visa in PDF format and upright.
  • Personal email address (one for each individual candidate)
  • Letter from your employer indicating your job title, a brief description of your duties.
  • Industry critical infrastructure of your work.
  • Exactly the specific activities you intend to perform.
  • How these activities directly support critical infrastructure.
  • Why these activities require your physical presence in the United States.
  • Why alternatives like video conferencing, telecommuting, or proxy actions don’t directly support critical infrastructure.

US Department of State Links

Overview of the US State Department NIE:
https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-for-certain-travelers-from-china-Iran-india-brazil-south-africa-schengen- region-united-kingdom-and-ireland.html

Country-specific information from the US State Department on Covid 19:
https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html

Covid conditions by country:

https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html



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