US Immigration Alert – Changes to COVID Travel Ban NIE Eligibility

This blog is co-written by Eric Noble-Marks (Harvard Law Student and Summer Law Student for Moodys Tax)

In a time of unprecedented restrictions on international business travel to the United States stemming from the COVID-19 pandemic, the White House, the US Department of State (DOS) and the US Department of Homeland Security (DHS) have made it incredibly complex for American and global companies and organizations to bring key personnel to the US and implement operational planning.

Specifically, there have been numerous President Proclamations and Executive Orders barring admission to the US of most intending immigrants and nonimmigrants who had been physically present in one of the following countries or regions within the 14-day period preceding their planned travel to the US:

  • Brazil;
  • China;
  • India;
  • Iran;
  • Republic of Ireland;
  • Republic of South Africa.;
  • Schengen Region (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, Switzerland, Monaco, San Marino, Vatican City); and
  • United Kingdom (England, Scotland, Wales, Northern Ireland);

In recent months, to lessen the strain of COVID-19, the DOS has substantially narrowed the exemptions to these travel restrictions, even for individuals involved in critical infrastructure projects and industries. However, on May 27, 2021, with case numbers steadily dropping in and in response to real concerns expressed by the US immigration legal and business communities, the DOS released new guidance expanding who may qualify for a National Interest Exemption (NIE), permitting travel to the US from one of the countries or regions listed above. 

More specifically, the newest DOS guidance has expanded the NIE eligibility to include the following:

  • Those traveling to the US to provide vital support or executive direction for critical infrastructure;
  • Those traveling to the US to provide vital support or executive direction related to significant economic activity in the US;
  • Journalists;
  • Students and certain Academics covered by exchange visitor programs;
  • Certain Intending Immigrants; and
  • Certain Fiancés.

It is important to note that the traveler must possess the appropriate visa, ESTA approval, or travel document, as well as a valid, unexpired NIE granted by a US Embassy or Consulate to travel to the US. Furthermore, NIE travelers must strictly comply with COVID-19 testing requirements and should remember that admission to the US is always in the discretion of the US Customs and Border Protection at pre-flight inspection or a port-of-entry to the US.

Given that guidance was released in recent months that specifically excluded executives and other groups detailed above from the list of exemptions to the travel ban, these developments have been enthusiastically welcomed by both the immigration legal community and business leaders and organizations in the US and abroad. However, as any good immigration lawyer will tell you, the rules of the game in US immigration remain subject to change in the blink of an eye.

Stay tuned for the latest from the Moodys immigration team as we closely monitor these regulations and other significant changes in US and Canadian immigration.