On March 2, 2021, the Department of State (DOS) rescinded, with immediate effect, its policy regarding the categories of travelers eligible for exceptions under Presidential Proclamation 10143 as related to the Schengen Area, United Kingdom, and Ireland and established new, more restrictive, criteria for national interest exceptions (NIE).  

The broader NIE regulations, first introduced in July 2020 for U.S. travelers from the Schengen area, the United Kingdom and Ireland, covered specialists, executives, board members, technical experts, investors, professional athletes, and their dependents, and are now replaced by stricter requirements ("vital support of critical infrastructure sectors as defined by the DOS or critical infrastructure linked supply chain"). 

The new standard limits NIEs to certain travelers seeking to provide “vital support for critical infrastructure” of the United States. DOS has yet to providence guidance on what the terms “vital support” and “critical infrastructure” mean, but reference can be made to the 16 infrastructure sectors defined by the Cybersecurity and Infrastructure Security Agency, including: chemicals, communications, energy, financial services, healthcare, information technology, public health, and government facilities, to name a few.  DOS continues to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.  

The new policy impacts nonimmigrants, including B, E, H, L, O and P visa applicants and visa holders as well as ESTA business travelers. It does not impact or change the NIE standard for students, J-1 academic and research exchange visitors, journalists, or NIE requests based on humanitarian travel, COVID-related activities, or national security. It also does not change the exempted categories as listed in the proclamation. Prior issued NIEs or visas will not be revoked, but foreign nationals must travel to the U.S. within the 30-day NIE validity period, as the NIE grant is only valid for one entry. Anyone who does not travel within that time frame will need to apply for a new NIE under the new standard, running the risk of being rejected under this narrower standard. Any pending applicants for visas or NIEs may receive cancellations, and foreign nationals would then have to satisfy the new NIE standard to be rescheduled.

Following the announcement, consular posts throughout the Schengen Area, U.K., and Ireland sent notices of cancellation of scheduled visa appointments. Due to limited visa services and a lack of resources, many consular posts are refusing to schedule visa appointments or issue visas without applicants first demonstrating eligibility for a NIE. This has the practical effect of not allowing visa applicants subject to Presidential Proclamation 10143 to bypass the need for a NIE by quarantining for 14 days in a region that is not subject to COVID-19 travel restrictions before entering the United States.

RSST Law Group will continue to monitor the situation and track DOS guidance for those seeking NIEs under the new policy.