Vital Support for Critical Infrastructure Sectors – New Guidance for National Interest Exceptions

In the first week of March 2021 the Department of State updated its requirements for granting a National Interest Exception to people who had been in the Schengen Area, United Kingdom, or Ireland within 14 days prior to entering the U.S. (see also Presidential Proclamation 10143). Previous guidance stated that technical experts and specialists, senior-level managers and executives, treaty-traders and investors, and professional athletes (and dependents of these travelers) were eligible for a National Interest Exception to the 14-day restriction. These travelers must now demonstrate that they will be coming to the United States to provide “vital support for critical infrastructure sectors.”

“Critical infrastructure” is defined by the USA Patriot Act of 2001 as “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” The website for the Cybersecurity & Infrastructure Security Agency (“CISA”) includes a list of 16 critical infrastructure sectors. Thus, a traveler who no longer qualifies for an NIE based on visa category must be coming to the United States to provide vital support to one of these sectors.

Although it is unclear how U.S. consulates abroad will interpret this new policy, the CISA enabling legislation may provide clues. According to this law, the Secretary of CISA is responsible for recommending “measures necessary to protect the key resources and critical infrastructure of the United States” (6 U.S.C. § 652(e)(1)(F)). By some definitions, “vital” means “necessary for continued existence.” An alien coming to the U.S. to support the “measures necessary to protect” the critical infrastructure of the U.S. as recommended by the CISA Secretary would arguably be providing vital support for critical infrastructure.

Guidance from the CISA may be helpful in identifying the necessary measures to protect critical infrastructure. For example, the 2015 Food and Agriculture Sector Specific Plan provides methods for critical infrastructure partners (including the private sector) to assess risks, threats, and vulnerabilities, as well as the consequences of an event, incident, or occurrence. This guidance also provides instructions for sharing the results of threat, risk, and vulnerability assessments. The CISA website offers a list of services available to the private sector for protecting critical infrastructure and specific plans for each critical infrastructure sector.

Visa applicants from the Schengen Region, United Kingdom, or Ireland in the E and L visa categories may be able to qualify for a National Interest Exception by demonstrating that they are coming to the U.S. to implement CISA guidance. Even though these visa applicants are not specifically identified by visa category, the definition of critical infrastructure is “appropriately broad to include a wide range of stakeholders who either directly or indirectly enable the functionality of infrastructure systems.” Many businesses will fall within a critical infrastructure sector (e.g. restaurants are part of the Food and Agriculture Sector), and may be able to use the CISA guidance to help their employees obtain an NIE, even if those employees have been in a travel-restricted region within 14-days prior to entering the U.S. 

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