CBP Consideration of National Interest Exceptions Following July 6, 2021 Changes

Our office has recently received confirmation from a number of U.S. Customs and Border Protection (CBP) offices that National Interest Exceptions (NIEs) issued by its officers remain valid for a single entry within 30 days of the approval date. This policy reflects the previous approach to NIEs embraced by both CBP and the US Department of State (DoS) prior to the latter agency’s announcement of changes on July 6, 2021, and signifies CBP’s split with DoS on this critical issue.

What Do these National Interest Exceptions Mean?

On July 6, 2021, the DoS announced an important change with respect to its policy on NIEs-the waivers required of any traveler entering the US within 14 days of having been present in Europe, India, China, Brazil, Iran, Ireland, the United Kingdom, or South Africa. On that date, the DoS announced that all NIEs, including those issued within the preceding 1-year period, would now be valid for a period of 12 months and multiple entries, provided the traveler enters the United States for the same reason as that stated in the initial application. Prior to the July 6th announcement, all approved NIEs were valid for one trip within 30 days of approval. This policy was in effect regardless of the agency that approved the NIE. While there has been no announcement to date by CBP regarding whether its offices would consider a similar expansion of CBP-issued NIEs, this change was initially honored at the US-Canada border by CBP as well in connection with one of its own approvals.

Recently, our office has received information that this policy has changed within CBP. We surveyed ten different US ports of entry, and from the responses we have received, it is clear that while USCBP will honor NIEs issued by the Department of State per the terms of the July 6th memo, they will not honor NIEs issued by CBP (themselves) under the same terms. A new NIE is needed, even if approved by CBP in the past. While this does not foreclose the possibility that CBP may grant a new application valid for a one-year period, it is clear from the responses that older CBP-issued approvals will not be automatically honored, as are NIEs which were approved by the DoS. Another issue that was initially unclear was whether CBP would defer to a DoS determination that an applicant for an NIE may rely on an approval previously issued by CBP. This has now been clarified, as the DoS’s August 12, 2021 update states that “there is no change to the validity period of DHS/CBP issued NIEs” as a result of its change in policy.

Based on the above, it remains important to review each traveler’s circumstances to determine if a new NIE request is needed, and if so, to determine which agency represents the best path forward. It does not appear that the NIE requirement will change at any point in the near future, although if it does, it may change for the different regions and/or ports of entry in different ways.