On March 2, 2021, the Department of State issued updated guidance on the National Interest Exception (NIE) for the COVID-related travel ban to the United States from individuals who are in the Schengen Area, the U.K. or Ireland. This guidance restricts eligibility for an NIE waiver of the travel ban.

By way of background, the Schengen travel ban was implemented in a Proclamation issued by President Trump on March 13, 2020. This travel ban requires that individuals present in the Schengen Area, the U.K. or Ireland either obtain a waiver of the ban, or quarantine in a third country for 14 days prior to entering the United States. There are a number of individuals who are exempt from this ban. For additional information on the Schengen travel ban, please visit our prior alert. 

New Department of State Policy for National Interest Exception

On March 2, 2021, the Secretary of State rescinded the previous NIE criteria regarding travelers eligible for a waiver of the Schengen travel ban.

The new criteria allow for waivers for certain travelers who will provide “vital support for critical infrastructure.” However, the parameters of what is included in “vital support for critical infrastructure” are not specifically stated in this guidance. The new guidance rescinds the following individuals from eligibility for an NIE waiver: technical specialists, senior managers and executives, E-1 and E-2 treaty traders and investors, and professional athletes.

While the current guidance is silent on “critical infrastructure,” the Department of State has defined “Critical Infrastructure Sectors” in similar contexts to include the following industries: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.

In addition, travelers to the U.S. who remain eligible to apply for an NIE waiver include academics, students, journalists, humanitarian travelers, public health responders, and those travelers who will benefit national security.

No previously issued visa or NIE waiver will be revoked. However, the exception is only valid for one entry to the U.S. Any return trips to the Schengen Area, the U.K. and Ireland will subject an individual to the ban again.

Immediate Action Steps for Employers/Employees Impacted by the Travel Ban

Anyone who is impacted by the travel ban should contact their Mintz immigration attorney to discuss the impact of the travel ban and guidance for obtaining an NIE waiver.

The impact of COVID on international travel and the issuance of visas at consular posts abroad is a continually changing and fluid situation. We expect the U.S. Departments of State and Homeland Security to issue further information about travel to the U.S., and we will continue to provide guidance as new information becomes available.