Travel Alert – Update On U.S. Travel Bans – Immigration


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 revised and restricted its
criteria for granting an NIE waiver of the COVID travel ban. Please
see our prior alert for more details.

In addition, 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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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