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Travel Alert – Update on U.S. Travel Bans

As the COVID-19 pandemic and related restrictions continue, we advise caution regarding international travel. Everyone considering international 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.

CDC Update Requiring Negative COVID-19 Test

The Centers for Disease Control and Prevention (CDC) issued an Order, effective January 26, 2021, requiring all international air passengers destined for the United States to be tested no more than 3 days before their U.S.-bound flight departs, and present the negative viral test result. As an alternative to a negative COVID-19 test result, international travelers may present documentation of recovery from COVID-19, including a positive viral test result and letter from a healthcare provider or public health official clearing them for travel. All passengers must present the negative test result or proof of recovery from COVID-19 before boarding the flight. This new Order supersedes the December 25, 2020 Order requiring negative pre-departure COVID-19 proof for all passengers arriving from the United Kingdom.

The CDC Order applies to all air passengers traveling to the United States, 2 years of age or older, including U.S. citizens and legal permanent residents. Further, the CDC guidelines and orders do not replace the Presidential proclamations. Finally, proof of vaccination does not exempt international travelers from any of the restrictions or requirements currently in place. Please see details on the current Presidential proclamation travel bans below.

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. In addition, in January 2021 and April 2021, President Biden issued updated COVID-related travel bans to add South Africa and India, respectively. Exempting U.S. citizens and Lawful Permanent Residents, these travel bans suspend indefinitely the entry of foreign nationals who have been physically present in certain countries during the 14 days prior to entering the U.S. These bans will remain in place until they are terminated by President Biden. The suspension of entry for foreign nationals currently applies to physical presence in the following countries: China (excluding Hong Kong and Macau), Iran, Brazil, India, the United Kingdom, Ireland, South Africa, 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.

As mentioned above, U.S. citizens and Lawful Permanent Residents are exempt from the travel ban. The full list of exempt individuals is as follows:

  • U.S. citizens;
  • U.S. lawful permanent residents;
  • Noncitizen nationals of the U.S.;
  • 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;
  • A foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided they are both unmarried and under the age of 21;
  • A foreign national who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States on an IR-4 or IH-4 visa;
  • A foreign national traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the COVID-19 virus;
  • A foreign air or sea crewmember;
  • Certain A, C, E-1 (TECRO or TECO), G, and NATO nonimmigrants, or nonimmigrants whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  • A foreign national whose entry would further important U.S. law enforcement objectives;
  • A foreign national whose entry would be in the national interest; and
  • Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.

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

The Presidential Proclamation banning H-1B, H-2B, L-1 and certain J-1 travelers from applying for visas and entering the United States expired on March 31, 2021, and is no longer in effect.

However, for those who do not have a valid visa for return to the U.S., either because their status was changed in the U.S. or a prior visa has expired, obtaining a new visa may prove challenging. Some consular posts are simply not scheduling routine visa appointments, 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 Exception waiver, there is a good chance that a new visa will not be issued. Individuals eligible to have the in-person visa appointment waived stand the best chance of securing visas in these categories by submitting application documents to the Embassy through drop box or courier services. Each consular post determines the criteria for a waiver of the interview requirement. At a minimum, typically, the consular post requires that the individual have already been granted a visa in the same classification.

Those who need to obtain a new nonimmigrant visa should verify the status of visa processing operations at the consular post where they will apply.

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.

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 U.S. Consulate or Embassy in their home country

On April 30, 2021, the Department of State expanded the NIE waiver so that it applies universally to all individuals who are subject to the COVID travel ban. For individuals traveling from any country that is subject to a travel ban, waivers may be granted for travel related to humanitarian travel, public health response, and national security. These requests must be submitted to the U.S. 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.

The Department of State recently updated its criteria for granting an NIE waiver of the COVID travel ban. Please see our alert for more details.

In addition, the Department of State has announced an extension of the validity of NIE waivers from 30 days to 12 months.  This change also expands NIE validity to allow for multiple entries, and is retroactive to NIEs approved in the last 12 months.  Please see our recent alert for more details

Travelers to the U.S. who remain eligible to apply for an NIE waiver include academics, students, journalists, humanitarian travelers, public health responders, and those travelers who will benefit national security. More specifically, the Department of State has provided the following exemptions for all COVID-related travel bans to the U.S.:

  • F-1 and M-1 students with a valid visa who are entering the U.S. to begin or continue an academic program that starts on August 1, 2021 or later do not need to apply for a waiver and may enter the U.S. up to 30 days prior to their program start date;
  • F-1 and M-1 students who are entering the U.S. to begin or continue an academic program that starts on August 1, 2021 or later and who need a visa will be automatically considered for a National Interest Exception;
  • J-1 exchange visitors in a number of categories, as described in the Department of State’s update.
     
  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 individuals in a number of categories listed above, but these categories are not exempt from the testing requirement.

Individuals in the exempt categories may continue to travel to the U.S. without securing a waiver, and should carry original documentation that evidences the exemption as well as the required COVID test result or alternative documentation.

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 normally placed in the passport within several business days following the appointment. 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 will undergo further review. If the application is selected for administrative processing, the applicant cannot return to the U.S. until the visa is issued and, while most cases are resolved within 2-3 weeks, on occasion, administrative processing may extend to several months, or even longer. Visit the Mintz Resources page here and here for further details on visa processing.

Entry into the U.S.

In addition to the COVID-19 Test Order issued by the CDC when entering the U.S. following international travel, foreign nationals should be prepared to answer questions from a Customs 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 supporting the individual’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. in order to correct any errors in a timely manner.

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

 

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Author

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.