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Important Reminders as the Holiday Travel Season Approaches

As the COVID-19 pandemic and related restrictions continue, many who have endured long separations from home and family are eager to travel as the holidays approach.  Everyone considering holiday travel is urged to carefully consider the risks and be fully aware of how ongoing conditions may impact travel.  Due to limited availability of visa appointments and the possibility of additional COVID-related travel restrictions, individuals should consider not traveling abroad, or else should be prepared to spend additional time outside the United States if needed.

Current Travel Bans:

COVID-related Country Bans

Between January and May 2020, President Trump issued a series of travel bans to curtail the spread of the Coronavirus (COVID-19) pandemic, which remain in place. Exempting US citizens and Lawful Permanent Residents, President Trump suspended indefinitely the entry of foreign nationals (see prior Mintz Alert for a complete list of exempt individuals) who have been physically present in certain countries during the 14 days prior to entering the U.S. This ban remains in place until it is terminated by the President. The suspension of entry for foreign nationals currently applies to physical presence in the following countries: China (excluding Hong Kong and Macau), Iran, Brazil, the United Kingdom, Ireland and the Schengen area of Europe comprising Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. 

Any physical presence in these countries triggers application of the ban, including flight connections and layovers, so it is important to arrange any travel accordingly.  

Due to the increase in COVID cases, it is always possible that additional countries may be added to these travel bans in the future; and that the addition of new countries will be done with little notice.

Economic-related Ban on Certain Individuals Seeking Entry in the H, L, and J Visa Categories

Effective June 24, 2020, President Trump issued a proclamation that suspended the entry of certain nonimmigrants into the United States. Individuals in the following visa classifications who were outside of the United States without valid visa stamps in their passports on the effective date of the proclamation are prohibited from entering the United States until after December 31, 2020: H-1B workers and their dependent family members; H-2B workers and their dependent family members; L-1 workers and their dependent family members; and J exchange visitors who are participating in one of the following exchange categories ‒ intern, trainee, teacher, camp counselor, au pair, or summer work/travel program ‒ and their dependent family members.

Individuals, whether inside or outside of the U.S. at the time of the proclamation, who have valid nonimmigrant visas in these categories and are attempting to enter the U.S. using the previously issued visa are not impacted, notwithstanding any other travel restriction. Canadians, who do not require visa stamps in these categories, are exempt from the nonimmigrant entry ban. 

Many U.S. Consular posts have suspended routine visa appointments in the above-listed categories and even if an individual can obtain a visa appointment, one will not be able to enter the U.S. until after December 31, 2020 unless they qualify for a waiver as described below. 

Exemptions and waivers for individuals subject to travel bans:

For those wishing to travel and subject to the travel bans, there may be options available.  Both the COVID-related travel bans and economic-related bans do have waivers available in specific limited circumstances. 

Options for COVID-Related Country Bans

Individuals seeking to return to the U.S. from one of the COVID-banned countries generally have two options: 

  1. Securing a “National Interest Exception” (or “NIE”) waiver from the US Consulate or Embassy in their home country.  

For individuals traveling from the UK, Ireland or a Schengen country, waivers may be granted for travel related to humanitarian travel, public health response, and national security.  These requests must be submitted to the US Consulate or Embassy in the individual’s home country.  Most consular posts will not entertain a request for an NIE waiver unless the individual is outside of the U.S., so permission to return to the U.S. cannot generally be secured in advance of departure.  Further, consular officers have wide discretion with regard to granting these waivers, and limited consular operations frequently result in long waits.  As a result, traveling with the expectation of being granted a waiver continues to be risky.  Procedures vary widely, but are generally outlined on the Consulate’s website.  Note that this NIE waiver option is limited to travelers coming from the UK, Ireland and the Schengen countries. 

Students seeking to travel to the U.S. on valid F-1 or M-1 visas from the UK, Ireland and the Schengen region do not need to contact the Consulate or Embassy, but are automatically granted the NIE waiver.

  1. Individuals seeking to return to the U.S. from a COVID-banned country who are unable to secure an NIE waiver – because the request is denied, delayed or not available – may choose to return to the U.S. only after a 14-day “quarantine” stay in a non-banned country.  The COVID-related ban only applies to anyone who has been physically present in one of the banned countries during the 14 days prior to admission.  Spending the 14 days prior to admission in another country removes the ban on entry into the U.S.

When considering international travel and the available waivers, it is important to remember that the COVID-related travel bans exempt the following individuals: 

  • Spouses of U.S. citizens and lawful permanent residents;
  • A foreign national who is the parent or legal guardian of an unmarried U.S. citizen or lawful permanent resident under the age of 21; and
  • A foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided they are both under 21.

Individuals in these categories may continue to travel to the U.S. without securing a waiver, and should carry original documentation that evidences the exemption.

Options for Economic-related Ban on Certain Individuals Seeking Entry in the H, L, and J Visa Categories

Individuals seeking to return to the U.S. in H, L or J status, who do not have a valid visa issued prior to June 24, 2020, may be subject to the ban on new admissions in these categories, currently in place through December 31, 2020.  Detailed guidance on this ban, as well as the “National Interest” waiver available is explained in a prior Mintz Alert.  

Individuals who were in the United States in H, L or J status on the June 24, 2020 effective date should be exempt from the ban.  However, if you do not have a valid visa for return to the U.S., either because your status was changed in the U.S. or your prior visa has expired, obtaining a new visa may prove challenging.  Some consular posts are simply not scheduling visa appointments in these categories, and others are allowing appointments to be scheduled – sometimes months in the future – only to cancel them.  From a practical standpoint, unless one is likely to qualify for a National Interest waiver, there’s a good chance that a new visa will not be issued.  Individuals eligible to have the in-person visa appointment waived, submitting application documents to the Embassy through drop box or courier services, stand the best chance of securing visas in these categories. 

Visa processing and impact on travel options

The U.S. Department of State (“DOS”) initially suspended routine visa processing in March 2020 due to COVID-19 and began phased reopenings across Consulates starting in July 2020.   The Consulates have resumed routine visa services on a post-by-post basis, but most Consulates are still operating at reduced capacity and offering only very limited services.  Some Consulates resumed routine visa services only to reduce their capacity in October due to the increase of COVID cases in a number of countries.  The DOS is unable to provide dates on when each Consulate will resume specific visa services or when all posts will return to pre-COVID processing times. Most Consulates do have emergency and “mission-critical” services available on a case-by-case basis.  Please be sure to check the U.S. Consulate website in advance to confirm current rules on visa issuance. 

If an individual is able to secure a nonimmigrant visa appointment, most appointments will follow routine processing and the Applicant will be notified of an approval following the interview.  If approved, the visa stamp is placed in the passport within several business days. In certain instances, if the Consular Officer conducting the interview cannot establish visa eligibility at the time of the interview, the application will be placed in administrative processing and undergo further review. If the application is selected for administrative processing, one cannot return to the U.S. until the visa is issued and, while most cases are resolved within 2-3 weeks, it may extend to several months in some instances. Visit the Mintz Resources page here and here for further details on visa processing. 

Entry into the U.S.

When entering the U.S. following international travel, foreign nationals should be prepared to answer questions from a Custom and Border Protection officer regarding the nature of proposed entry and qualifications for a designated waiver or exemption. All foreign nationals should carry documentation evidencing status as well as any documentation to support one’s specific exemption from the travel ban or waiver requests. Visit the Mintz Resources page here for details on required documents for travel. 

Following entry into the U.S., it is critical for individuals to check the I-94 admission record to ensure that it properly reflects their status and authorized stay in the U.S. We recommend verifying the accuracy of Form I-94 details within 48 hours of entry to the U.S. 

Please contact your Mintz attorney with any questions regarding international travel. 

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Authors

Maryanne Kline

Practice Group Associate

Maryanne Kline is a Practice Group Associate at Mintz. Her practice focuses on US federal immigration law, with a concentration on business-based immigration issues. Maryanne counsels clients on issues related to hiring foreign nationals, executives, managers, and other workers.

Danielle A. Porter

Practice Group Associate

Danielle A. Porter is an attorney in the Mintz Immigration Practice. Danielle provides immigration advice and legal strategy to corporate human resources and global mobility teams in a variety of sectors, including information technology, management consulting, and financial services.