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How to Obtain NIV Appointments and Apply for NIE for Travelers Impacted by the Geographic COVID-19 Related Travel Ban

Although some consular posts have begun resuming routine visa services, the level of services offered vary and depend on the consular post, its available resources, and any relevant COVID-19 restrictions that the host country has implemented. To successfully schedule a visa appointment and be eligible for subsequent visa’s issuance, please proactively demonstrate the eligibility under the respective proclamation, including any eligibility for a specified exemption or exception, including the National Interest Exception (“NIE”).  Please make a prima facie case for eligibility for an exemption or exception to obtain a visa appointment even if the post is not currently open for routine visa processing.

Please contact the consular post directly to check whether the post is open and, if so, to confirm nonimmigrant visa (“NIV”) scheduling procedures, including obtaining NIE eligibility/process requirements. Procedures can vary dramatically by country and consular post and are constantly evolving. For this reason, it is a best practice to double-check the post’s website before initiating the visa appointment process. Also, when requesting a visa appointment and seeking to demonstrate eligibility for visa processing, you should clearly demonstrate with facts why you fall outside the scope of the NIV ban or is eligible for an exception.

Many have reported appointment cancellations throughout Europe, such as recent reports of cancellations by the U.S. Embassy in London. Please note, once the visa appointment is cancelled, wait and then reschedule to the next earliest appointment date, and where warranted and eligible, apply for an expedited visa appointment, in accordance with the post’s procedures.

Most recently, on January 25, 2021, President Biden issued Presidential Proclamation 10143 (PP 10143), which maintained the COVID-related travel bans for the Schengen Area, UK, Ireland, and Brazil and introduced a suspension of entry into the U.S. for travelers from South Africa. Moreover, President Biden introduced a suspension of entry for travelers from India on April 30, 2021 in Presidential Proclamation 10199 (PP 10199). The proclamations will remain in effect until terminated by the President. In connection with these proclamations, please bear in mind the following:

  • The Presidential Proclamations suspend travel to the U.S. of any foreign nationals who `have been physically present in the China, Iran, Schengen Area, Ireland, U.K, Brazil, South Africa, and India within the immediately preceding 14 days before their arrival in the United States.
  • The suspension also applies to transiting through a U.S. airport.
  • Transiting through a country covered by any COVID-19 related Presidential Proclamation, even without exiting the airport, also counts as physical presence within that country sufficient to trigger the ban.

The May 12, 2021 announcement from the Department of State provided clearer guidance on exemptions to the Presidential Proclamations. It states that the Presidential Proclamations’ travel bans apply to all foreign nationals who are physically present in any of the 33 countries. Under this guidance, the Secretary of State determined certain categories of foreign nationals qualify for blanket national interest exceptions to all four Presidential Proclamations including 9984 (China), 9992 (Iran), 10143 (Schengen Area, U.K., Ireland, Brazil, and South Africa, and 10199 (India).

They include:

  • Immigrants
  • K-1 – Fiances of U.S. citizens and their dependents
  • J-1 – Certain exchange visitors
  • F, M, and certain J students –
  • J visa – Academics
  • I visa – Journalist
  • Pilots and Aircrew for training and aircraft pickup, delivery, or maintenance
  • Travel for lifesaving medical treatment, public health services or research in COVID-19and other diseases, humanitarian travel including care of a USC, LPR, or other nonimmigrant-in-lawful status close family member, medical escorts, national security and derivative family who have been granted an NIE or who is not otherwise subject to the Proclamations.
  • Travelers providing vital support for critical infrastructure sectors, or directly linked supply chains to these sectors, as outlined at www.cisa.gov/critical-infrastructure-sectors

On May 27, 2021, the Secretary of State expanded NIE criteria under current and future geographic-related PPs8 to include travelers seeking to:

  • Provide vital support or executive direction for critical infrastructure;
  • Provide vital support or executive direction for significant economic activity in the United States;
  • Journalists
  • Students and certain academics covered by exchange visitor programs; •Immigrants; and•
  • Fiancés.

Also, please note, per May 12, 2021, NIEs continue to be available for public health, national security, and humanitarian reasons, including au pairs coming to care for children whose parents are involved in the direct treatment of COVID-19 patients. NIEs continue to be valid for one entry and for thirty (30) days from the date of issuance. Recently, the Department of State confirmed that any requests for NIE consideration for professional athletes must first be made directly to the CBP by the professional sports league contact. If CBP approves the NIE, but the applicant requires a visa to travel, they may contact the consular post to inform them of the NIE approval and schedule a visa appointment. In addition, please note, the earlier guidance provided by the State pertaining to NIE and NIC, such as being member of the U.S. Chamber of Commerce to qualify for a NIE is no longer in effect.

Also, as before, students with valid F-1 or M-1 visas traveling to begin or continue an academic program do not need to contact an embassy or consulate to seek an individual NIE to travel and will continue to be automatically considered for an NIE, however, the earliest the student may enter the U.S. is 30 days before the start of their academic studies. NIE eligibility for students who have been present in Brazil, China, India, Iran, or South Africa applies only to programs that begin on or after August 1, 2021. Visa applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel.

In guidance issued on March 2, 2021 Secretary created a national interest determination covering certain travelers seeking to provide vital support for critical infrastructure. The following is a non-exhaustive list of critical sectors according to the CISA memorandum:

  • Chemical Sector
  • Commercial Facilities Sector
  • Communications Sector
  • Critical Manufacturing Sector
  • Dams Sector
  • Defense Industrial Base Sector
  • Emergency Services Sector
  • Energy Sector
  • Financial Services Sector
  • Food and Agriculture Sector
  • Government Facilities Sector
  • Healthcare and Public Health Sectors
  • Information Technology Sector
  • Nuclear Reactors, Materials, and Waste Sector
  • Transportation Sector
  • Water and Wastewater Systems Sector

These are the 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States and their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health, or safety, or any combination thereof. Presidential Policy Directive 21 (PPD-21): Critical Infrastructure Security and Resilience advances a national policy to strengthen and maintain secure, functioning, and resilient critical infrastructure. This directive supersedes Homeland Security Presidential Directive 7, which established a national policy for Federal departments and agencies to identify and prioritize critical infrastructure and protect them from terrorist attacks. Please keep a few practical considerations in mind when making an NIE request supporting a claim under the critical infrastructure category:

  • Review the CISA list and carefully and concisely lay out how and why the traveler is vital to critical infrastructure and how they cannot perform their work remotely.
  • Explain why it is required or necessary for you to travel; and why is your travel urgent; and how does it directly impact one of the critical infrastructure sects laid out in the CISA document. Why can the activities not be performed remotely from abroad or by a proxy?
  • File your NIE request and visa application at the consular post where you are physically present.
  • Although not recommended, if you are basing your NIE argument solely on U.S. job creation, take heed that the consulate is required to send these types of economic impact NIE requests to Washington for approval, in their discretion, and cannot adjudicate them locally, so your request may take longer to process.

If you are applying for a visa, the NIE request must be made concurrently at the same Consulate/Embassy after securing a scheduled a NIV appointment. If no routine visa appointments are available, you should be prepared to make prima facie showing of NIE eligibility. In fact, it would be prudent to state the prima facie case for NIE eligibility when scheduling a routine visa appointment to avoid the appointment being inadvertently cancelled if COVID-related circumstances require the consular post to cancel blocks of routine appointments.

Typically you have to schedule an appointment and pay the required visa fee. Then you must request an expedited visa appointment, including the NIE request and supporting documents and information (as described above), or some showing the entry will be for purposes related to humanitarian travel, a public health need, or national security. The process and evidentiary requirements, as well as outcome, will vary from country to country. Consular officers have the authority to approve NIE requests that fall within the scope of State Department internal guidance. Situations outside of that guidance that the consular officer believes warrants issuance of an NIE are internally referred to the Assistant Secretary of State for consideration.

Likewise, you should be prepared to present an NIE argument for dependent visas to be issued simultaneously, perhaps explaining the hardship of separating the family during a pandemic, health issues, inability to travel due to business obligations/employment, etc. In its guidance published on April 30, 2021, 14 State confirmed that derivative family members would be reasonably expected to receive an NIE, if the purpose is to join a principal who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.

Also, please note, automatic NIE consideration for derivative spouses and minor children of the principal does not extend to domestic or cohabiting partners, extended family members, and other household members not eligible for derivative status under the INA16. The consular officers at the consular post do not have the discretion to grant NIEs for those domestic partners and household members that would typically apply and be eligible for a B-2 visa under 9 FAM 402.2-4(B)(5) to accompany the principal visa holder to the United States. For these non-derivative domestic partners and household members, an NIE may be requested at the consulate based on humanitarian grounds. If the consular officer agrees with the request, the recommendation is then made by post to the Assistant Secretary’s office in Washington, D.C., which has ultimate authority to make a final determination on the NIE request.

In addition, you should check the visa stamp/foil to ensure the NIE language is annotated on the visa. If an NIE request was made, but the visa is issued without a specific NIE annotation, there is a risk that the NIE approval may not have been updated in the government database. In such cases, you should confirm with the consular post that the NIE appears in the databases and inquire whether the visa needs to be reissued with an annotation to avoid potential problems boarding their flights to the U.S. or at the POE with U.S. Customs and Border Protection (CBP).

On July 6, 2021, DOS posted guidance on its website confirming that NIEs issued in the last 12 months would be automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted. The extension applies to NIEs for traveler’s subject to Presidential Proclamations 9984 (China), 9992 (Iran), 10143 (Schengen Area, U.K., Ireland, Brazil, and South Africa), and 10199 (India). Please note, your admission to the U.S. remains subject to CBP officers’ determination at the port of entry.

Travelers (except A, G, F and M visa holders) that already possess valid visas or ESTA registrations must receive approval for an NIE before booking travel if they are subject to the geographic travel bans. It has been reported that the ESTA system may automatically cancel the traveler’s ESTA if the flight to the U.S. is scheduled during the 14-day stay in a third country. To maintain the ESTA, it is advisable to schedule a flight after the 14-day stay in a third country. This is presumably because the carrier will report an attempted entry during the 14-day period to avoid fines. Individuals in a banned country with valid visas who book travel to a third country not subject to the ban may also be flagged and denied boarding a connecting flight to the U.S., even if they were physically present in a non-banned country for 14 days prior to attempting to enter the U.S.

We will regularly update the blog as soon as any new information is available.

Disclaimer

This article aims to provide new information concerning NIV and NIE. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

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