August 23: Roundup of Current Travel Bans, Consular Closures and Visa Issuance Delays

Published By Harris Beach to JD Supra

https://www.jdsupra.com/legalnews/roundup-of-current-travel-bans-consular-1239567/

In March 2020, the U.S. Department of State (“DOS”) announced the suspension of routine visa services at all U.S. embassies and consulates worldwide due to the COVID-19 pandemic. At that time, consular services were limited to those provided to U.S. citizens and foreign nationals with an urgent matter who needed to travel immediately. On July 22, 2020, DOS announced that they would resume routine visa services “as local conditions and resources allow.” However, over one year later, very few consulates are back to offering routine visa processing. In addition, there are currently numerous individual travel bans in place, each of which has exceptions and exemptions applied differently in different countries. Thus, navigating the visa application process is a time-consuming and difficult process, at best.

Visa Wait Times

There are two different online resources available to determine whether consulates are engaged in any form of routine visa operations. The first is the “Visa Wait Times” tool and the second is the website for the U.S. embassy or consulate in question. It is important to check both, as these tools often provide a very different, if not conflicting, picture of the actual situation. When the two conflict, the consulate or embassy website is generally more accurate. However, the Visa Wait Times tool provides a quick idea about the situation on the ground and is useful for comparing wait times at various consular posts without extensively digging around on a consulate’s webpage.

Current Travel Bans

The following COVID-related travel bans are currently in place, and all bar individuals who have been physically present in the affected countries in the last 14 days from traveling directly to the United States:

1. India (effective May 4, 2021): https://www.whitehouse.gov/briefing-room/presidential-actions/2021/04/30/a-proclamation-on-the-suspension-of-entry-as-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease-2019/
2. Iran (effective February 29, 2020): https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/
3. Schengen Area, UK, Ireland, Brazil, and South Africa (effective January 26, 2021): https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/25/proclamation-on-the-suspension-of-entry-as-immigrants-and-non-immigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease/ *(Note: this Proclamation was issued by President Biden shortly after taking office, to reinstate travel bans previously announced by the Trump administration, but then briefly rescinded just before Biden took office).
4. China (effective January 31, 2020): https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/

Exemptions to the Travel Bans

The following individuals are exempt from the travel bans:

• U.S. citizens;
• Lawful permanent residents of the United States;
• Spouses and minor children of U.S. citizens or lawful permanent residents;
• Parents or legal guardians of a U.S. citizen or lawful permanent resident unmarried minor child;
• Siblings of a U.S. citizen or lawful permanent resident child, provided both are unmarried and under the age of 21;
• air and sea crewmembers;
• U.S. noncitizen nationals (not applicable to Proclamations 9984 (China) and 9992(Iran));
• Diplomats;
• Any noncitizen who is a member of the U.S. Armed Forces and any noncitizen who is a spouse or child of a member of the U.S. Armed Forces; and
• Certain U.S. Government invitees for the purpose of the containment or mitigation of COVID-19

Exceptions to the Travel Bans: National Interest Exceptions

In addition, a “National Interest Exception” or NIE can be obtained on a case-by-case basis for certain individuals. The Presidential Proclamations vest authority for determining who qualifies for an NIE in the Department of State, and the guidance on who qualifies has been updated on a regular basis by DOS. The following guidance is taken from U.S. Department of State website publications, and applies as of the writing of this article, but is subject to further change as the guidance evolves. We have seen both broadening and narrowing of the guidance at various points throughout the last year.

• Automatic NIE Consideration
  • Immigrant visa holders in India (not subject to the Proclamation);
  • Fiancé(e)s of U.S. citizens and their dependents (K visas);
  • Certain international students (F and M visas), as follows:

Students subject to these geographic COVID proclamations due to their presence in India, China, Iran, Brazil, or South Africa may qualify for a National Interest Exception only if their academic program, including optional practical training (OPT), begins August 1, 2021 or later. Students with valid F-1 and M-1 visas intending to begin or continue an academic program, including OPT, beginning August 1, 2021 or later do not need to contact an embassy or consulate to seek an individual National Interest Exception to travel. They may enter the United States no earlier than 30 days before the start of their academic studies. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel; and

• New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT).

• Eligible to Request NIE Consideration
  • Certain J-1 Exchange Visitors, as follows:

Travel by an au pair to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status when the au pair possesses special skills required for a child with particular needs (e.g., medical, special education, or sign language).

Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state or ward of a medical or other public funded institution.

Travel by an au pair to provide childcare services for a child whose parents are involved with giving medical care to individuals who have contracted COVID-19, or who are conducting medical research at United States facilities to help the United States combat COVID-19.

Travel for an exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to June 24, 2020, such as https://eca.state.gov/fulbright .

Travel by interns and trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.

Travel by specialized teachers in accredited educational institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.

Travel in support of critical foreign policy objectives: This only includes exchange visitors participating in a small number of exchange programs that fulfill critical and time sensitive foreign policy objectives.

• • Journalists
  • Pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance, including individuals who are traveling to the United States on B-1/B-2, B-1, or M-1 visas, or Visa Waiver Program authorizations. This also includes certain M-2 dependents when the principal visa holder’s necessary training is four weeks or longer.
  • Travelers who are seeking to provide vital support for critical infrastructure sectors or directly linked supply chains.
  • Travelers who are seeking to provide executive direction to critical infrastructure;
  • Traveling who are seeking to provide vital support or executive direction for significant economic activity in the United States; or
  • Travel in support of national security or public health.

Procedure for Requesting NIE

NIEs should be requested directly from the U.S. consular post in the country where the foreign national is located. Consulates will not consider NIE eligibility for someone who is currently in the United States, so it is not possible to receive a determination in advance of departing the U.S. NIE eligibility is at the discretion of the consulate. The procedure for requesting an NIE and the time period to receive a determination vary from one consular post to the next and are subject to change; it is therefore vital to review the relevant consular post’s website prior to lodging a request, and to follow all instructions carefully.

The procedures also vary depending on whether the applicant currently holds a valid visa. For those who hold a currently valid visa, the process is generally to email the consulate with an explanation as to how the individual qualifies for the NIE, including any relevant supporting documentation, and to wait for an answer from the consulate (generally 2-4 weeks). If the person does not hold a visa, the procedure is to schedule a visa interview at the earliest available appointment date (often several months into the future), and then request an expedite through the consulate’s visa appointment scheduling website. An expedite request can be submitted only one time, so it is important to include a succinct and complete analysis of NIE eligibility at the outset. If the NIE is granted, the consulate will email the applicant an earlier interview appointment and adjudicate the NIE at the visa interview.

It should also be noted that individuals holding a currently valid visa can skip the NIE process by spending 14 days in a third country not subject to any travel bans.

Visa Waiver Program applicants who hold a currently valid ESTA registration may also request an NIE by emailing the relevant consular post to submit a request in a manner similar to that used by applicants who have an already-valid visa.

Extension of NIE Validity Period

On June 29, 2021, the Department of State extended the validity of National Interest Exceptions (NIE) for travelers subject to restrictions under Presidential Proclamations. DOS noted, “Unless otherwise indicated, existing NIEs will be valid 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.” Previously, NIEs were valid only for 30 days and for a single entry.

The guidance on the travel bans and NIEs is constantly changing.