Travel Alert – Update on U.S. Travel Bans

January 24, 2021

Volume XI, Number 24

Travel Alert – Update on U.S. Travel Bans

Thursday, January 21, 2021

Travel Alert

As the COVID-19 pandemic and related restrictions continue, we continue to 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-19–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 three 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 health care 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 COVID-19 proof pre-departure for all passengers arriving from the United Kingdom.

The CDC Order applies to all air passengers traveling to the United States, two 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. Please see details on the current Presidential proclamation travel bans below.

Current Travel Bans

COVID-19–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 U.S. 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 will remain in place until it is 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, 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 the application of the ban, including flight connections and layovers, so it is important to arrange any travel accordingly.

Due to the increase in COVID-19 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 certain 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 March 31, 2021 following an extension of the original December 31, 2020 termination date. The affected visa classifications are 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, impacted individuals will not be able to enter the U.S. until after March 31, 2021, 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-19–related travel bans and economic-related bans do have waivers available in specific limited circumstances.

Options for COVID-19–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.

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 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. 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. They 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-19–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-19–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 March 31, 2021. 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 is a good chance that a new visa will not be issued. For individuals eligible to have the in-person visa appointment waived, submitting application documents to the embassy through drop box or courier services stands the best chance of securing visas in these categories. Each consular post determines the criteria for a waiver of the interview requirement. At a minimum, typically, the consular post requires that the individual has already been granted a visa in the same classification.

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-19 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-19 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 adhering to the requirements in 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.

*** Find the original article Online at: US Travel Ban Update: Negative COVID-Test Required (natlawreview.com)

 

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