On July 16 and 17, 2020, the U.S. Department of State (“DOS”) announced changes to two existing COVID-related travel restrictions. The first creates new exceptions to the Proclamation barring anyone who has been within a European country within the last 14 days from traveling directly to the United States. The second announcement clarifies who may receive new visas despite the Proclamation suspending entry to the United States for the remainder of 2020 for certain business travelers and new immigrants.
Exceptions to the Bar on Traveling Directly from Europe to the United States
The Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak implemented on March 11, 2020, which remains in effect, bars anyone who has been physically present in China, Iran, or a Schengen Area country within the last 14 days from entering the United States. The Schengen Area includes 26 European countries, as follows: 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. Later, the United Kingdom, Ireland, and Brazil were added to the list of countries. The current list is contained on the Centers for Disease Control’s website.
The new exceptions to this Proclamation announced on July 16 apply only to certain travelers from the Schengen Area, the United Kingdom, and Ireland. Specifically, international students holding F-1 and M-1 visas are not subject to the Proclamation and may fly directly to the United States from these countries. They do not need to request a National Interest Exception to the Proclamation.
In addition, qualified business travelers who are applying for or have valid visas or ESTA authorization (under the Visa Waiver Program) may travel to the United States even as the Proclamation remains in effect. The new exceptions also permit those holding E-1 or E-2 visas to travel to the United States.
Consulates may also grant National Interest Exceptions to the Proclamation. One European consular post’s website lists the following categories of individuals who may qualify for these exceptions:
- Public Health: Travel as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g. cancer or disease research).
- Students: All students, and their dependents, traveling to the United States on an F or M visa to pursue a full course of study or on a J visa to participate in an exchange program as a bona fide student.
- Academics: All exchange visitors and their dependents traveling to the United States on J visas in the following categories: professors, research scholars, short-term scholars or specialists.
- Investors: Travel in connection with investment or trade in the U.S. economy that generates a substantial economic impact, including investors and treaty-traders on E visas and the senior-level employees who provide strategic direction or expertise essential to the success of the investment, and their dependents.
- Economic: Temporary travel that provides a substantial economic benefit to the U.S. economy, including:
- Technical experts and specialists to install, service, maintain, or receive training for vessels, machinery and other specialized equipment used by U.S. and foreign firms with a substantial investment in the United States. Travel is temporary in nature and for a defined period of time.
- Senior-level managers and executives, and their dependents, who provide strategic direction necessary for the success of the company or venture.
- Professional athletes, dependents, and essential staff who enter the United States to participate in major sporting events, which bolster the U.S. economy.
There are also existing exceptions for professional athletes, their staff, and their family members. In addition, the Department of State continues to grant National Interest Exceptions on a case by case basis for humanitarian travel, public health response and national security. These requests must be submitted directly to the U.S. Consulate in the country where the visa is sought. Lawful permanent residents and U.S. citizens are exempt from the ban as are spouses, children and parents of lawful permanent residents and U.S. citizens, per the original terms of the Proclamation.
Clarification on Visa Issuance Despite the June 22, 2020 “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”
Presidential Proclamation 10052 took effect on June 24, 2020. As we previously reported, it restricts the ability of foreign nationals to enter the United States as nonimmigrants on certain H-1B, H-2B, H-4, L-1, L-2, and most J-1 visas through the end of the year. It also extends until the end of the year the previous bar on those seeking to make an initial entry to the United States on an immigrant visa. The order specifies that it only applies to individuals seeking entry on one of the nonimmigrant visas listed above, and only those who:
- Are outside of the United States on June 24, 2020;
- Do not have a valid nonimmigrant visa as of June 24, 2020; and
- Do not have other valid travel documentation, such as an advance parole document.
Anyone failing to meet all three of these conditions is not subject to the Proclamation.
On July 17, the Department of State has published new guidance which states that in addition to the limited exceptions to the Proclamation for humanitarian travel, public health response, and national security, additional exceptions may be provided to applicants who are subject to aging out of their current immigrant visa classification before the relevant P.P.s expire or within two weeks thereafter
For H-1B visas, exceptions are available in these situations:
- For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
- Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
For H-2B visas, exceptions are available in this situation:
- Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
For J-1 visas, exceptions are available in these situations:
- Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.
- Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
- Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
- An exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
- Interns and trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
- Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.
- Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.
For L-1 visas, exceptions are available in this situation:
- Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
H-4, L-2, and J-2 visa exceptions are available in this situation:
- National-interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to Presidential Proclamation 10052 (including those who have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.
Those who believe they qualify for an exception to the Proclamation may request a visa appointment and a consular officer will make the decision at the time of the interview.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.
This blog post does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.