The State Department cannot rely on presidential proclamations to refuse to adjudicate visas, Judge James E. Boasberg in the U.S. District Court for the D.C. District has held.

Judge Boasberg said nothing about what the State Department needs to do in line with its opinion, but established that the Administration’s travel restrictions did not include visa restrictions.

Since the issuance of the Presidential Proclamations restricting the entry of foreign nationals who have spent any time during the 14 days prior to their entry in over 30 countries (China, Iran, the UK and Ireland, the Schengen Zone countries, Brazil, South Africa and India), most U.S. Consulates abroad have been refusing to issue or even schedule visa interview appointments for individuals who do not qualify for National Interest Exceptions (NIEs) to the Proclamation. This has meant that even foreign nationals who were willing to wait out the 14 days in non-restricted countries would have difficulty getting a visa. It was a Catch-22. If they stayed in a restricted country, they might not get a visa because they did not qualify for an NIE and if they went to a non-restricted country, they might not get visas because they were third-country nationals.

The court recognized that this whole issue may soon become moot because the Biden Administration has said that the 14-day travel restrictions will be lifted in early November. But even when the restrictions are lifted and the Consulates go back to issuing visas rather than NIEs, it is likely that backlogs and delays will persist.

Visa processing at U.S. Consulates abroad was effectively suspended from March through July 2020. Since then, Consulates started a phased resumption of services. However, services are still not fully restored due to various COVID-19 restrictions abroad and many U.S. Consulates are not even fully staffed. As Consulates rely on visa fees rather than government funding, some have been unable to hire new staff due to the lack of fees. This means that it may be difficult for Consulates to staff up to eliminate backlogs.

If you have any questions about the effect of the D.C. Court’s ruling, Jackson Lewis attorneys are available to assist.

The State Department, in coordination with the CDC, raised its Travel Advisory for the United Kingdom to “Do Not Travel” because of COVID-19 (Level IV).

Coincidentally, the Department’s move came on the same day Prime Minister Boris Johnson lifted most COVID-19-related restrictions in the United Kingdom (yet, excluding Wales, Scotland, and Northern Ireland). He made this move as the case numbers are rising because most adults in the United Kingdom are fully vaccinated.

Despite the United Kingdom lifting its restrictions, the European Union has opened its borders to individuals from the United States (with various restrictions). Further, Canada is about to open its borders to fully vaccinated U.S. citizens and permanent residents. Moreover, the White House reported that the United States will not be lifting travel restrictions due to the spread of the Delta variant. Press Secretary Jen Psaki said that it is not clear how long the restrictions will last. As of July 23, 2021, the CDC announced that the seven-day average of COVID-19 cases in the United States was up over 46 percent from the prior week.

Therefore, despite lobbying efforts aimed at increasing summer tourism from Europe, the Presidential Proclamations restricting travel to the United States due to COVID-19 are likely to remain in effect throughout the tourist season and beyond. The travel restrictions were imposed more than a year ago, in January 2020, when President Donald Trump instituted the ban on travel from China. Further bans were instituted in 2020 and 2021 on individuals travelling from Iran, the United Kingdom, Ireland, the 26-member countries of the Schengen Zone, Brazil, South Africa, and, more recently, India. To overcome these restrictions those who need to travel to the United States but are subject to the bans must either “camp-out” in a non-banned country (if they can enter such a country) for 14 days before attempting to enter the United States or they must apply for and receive a National Interest Exception (NIE) to the relevant ban. Eligibility for NIEs is set forth in a web of complex and changing guidance from the Department of State and Customs and Border Protection.

Employers all over the country are suffering due to the bans. Their key employees cannot travel back and forth from or to the United States for important business purposes. The highly skilled or temporary, seasonal workers they need to boost their businesses and the economy cannot be hired. This is compounded by the fact that most U.S. consulates abroad are extremely back-logged and understaffed due to COVID-19.

If you have questions about the travel bans, Jackson Lewis attorneys are available to assist you in developing travel strategies and applying for NIEs.

 

Travel restrictions related to COVID-19 have been in place for more than a year. Certain restrictions have been removed, but the ones on travel from Brazil, China, India, Iran, Ireland, the Schengen Zone, South Africa, and the United Kingdom remain in effect. The White House wants to remove more restrictions and has announced it is putting together working groups with Canada, Mexico, the European Union, and the United Kingdom to “chart a path forward, with a goal or reopening international travel with . . . key partners.”

The groups will include experts from the White House COVID-19 Response Team, the National Security Council, and the Centers for Disease Control and Prevention. They will focus on real-time data. But a White House official noted, lifting restrictions will not be happening “today.”

The travel industry, and airlines in particular, has been hoping the United States will act quickly to remove the current COVID-19-based restrictions on travel, so their businesses and the economy in general can benefit from the summer season. Airline officials from the United States and the United Kingdom have been urging the lifting of trans-Atlantic restrictions. But they “do not expect Washington to lift restrictions until around July 4 at the earliest as the administration aims to get more Americans vaccinated.”

At the G-7 meeting, Prime Minister Justin Trudeau and President Joe Biden spoke about travel restrictions on their shared border. The land border is open only to “essential” travel. The essential travel ban has been in effect since March 2020 and keeps being renewed a month at a time. Currently, it is set to expire on June 21, 2021. There was “speculation that the border could reopen as early as June 22.” That does not seem to be in the cards. Trudeau has not wanted to lift restrictions until 75% of all Canadians have had at least one shot of a vaccine – a mark they might meet in July. For now, Canada is working on a phased approach, where the country might first exempt travelers who are fully vaccinated from quarantine rules.

We will provide updates on the possible loosening of travel restrictions as they become available. In the meantime, if you have questions about any of the travel restrictions and need advice about developing strategies for overcoming them, Jackson Lewis attorneys are available to assist you.

 

President Joe Biden has revoked the immigrant visa ban because he believes it did not advance the interests of the United States, but instead harmed United States industries, families, and diversity immigrant visa lottery winners.

The ban was put in place by former President Donald Trump in April 2020 on the stated ground that it was necessary to protect U.S. workers in the aftermath of the COVID-19 pandemic. It has prevented individuals who were abroad from seeking to enter the United States as permanent residents. Originally set to last for only 60 days, the ban was extended through March 31, 2021, by President Trump. The immigrant visa prohibition prevented some talented employment-based applicants from entering, but most of the people affected were diversity visa lottery winners, as well as family members of U.S. citizens and lawful permanent residents, who were prevented from joining their families in the United States.

This is now the third Trump travel ban that Biden has terminated. The first two were the bans that prevented individuals from 13 primarily Muslim or African countries from entering the United States. Still in effect is the nonimmigrant visa ban that has been thwarting U.S. businesses by preventing certain applicants for H, L, or J status from obtaining visas or coming to the United States absent an exemption or a national interest exception. This ban, like the immigrant visa ban, is still set to terminate on March 31, 2021, but it is not clear if that will happen.

The other travel ban that has been making it difficult for businesses to function is the 14-day ban that prohibits U.S. entry by individuals who have been in over 30 countries (China, Iran, the U.K., Ireland, the 26 Schengen countries, Brazil, and South Africa) in the 14days prior to their arrival in the United States. This ban, unlike the immigrant and nonimmigrant visa bans, is based on COVID-19-related health concerns.

The Department of State has issued specific instructions on how to proceed for 2020 Diversity Visa Applicants and immigrant visa applicants who were previously refused visas or entry due to the April 2020 proclamation. In addition, the Secretary of State has granted a national interest exception for 2020 Diversity Visa Applicants who hold valid visas but are subject to one of the 14-day bans.

Jackson Lewis attorneys are available to assist you in developing strategies to deal with the bans that are still in effect and to advise on the effects of the most recent revocations.

The Biden administration announced that restrictions on travel known as the “14-Day Rules” will remain in effect, despite former President Trump’s decision to terminate some of them. These rules restrict entry by most non-U.S. citizens and non-Green Card holders from China, Iran, the United Kingdom, Ireland, Brazil and the 26 Schengen Zone countries.  While there are exemptions and national interest exceptions, these restrictions prevent travelers who have been in the named countries within 14 days prior to departure from entering the United States. On Saturday, January 30, 2021, South Africa will be added to the list of restricted countries due to the new strain of COVID discovered in that country. The new strain has not yet been discovered in the United States.

As of January 26, 2021, under CDC regulations, individuals who can travel to the United States will be required to provide proof of a negative COVID-19 test within three days of departure or documentation of recovery from COVID-19 before boarding flights. This requirement applies to all passengers over two years old flying to the United States from abroad, including U.S. citizens and Green Card holders. More than 120 countries have similar requirements. The White House confirmed that at this time there will not be any waivers for travelers coming from countries where testing is limited. The CDC also directs people to stay home for seven days upon return and get tested three-to-five days after return.

As a further preventive measure, mask-wearing will be required domestically at all airports, on commercial aircraft, trains, public maritime vessels, including ferries, and intercity bus services and on all federal properties.

Jackson Lewis will continue to follow these changes and provide updates as they become available.

In addition to the  COVID-19-related travel restrictions and consular closures, Chinese graduate students and post-doctoral researchers will now face another hurdle in coming to the U.S. As of noon (EDT) on June 1, 2020, President Donald Trump’s “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China” became effective.

The Proclamation bans the entry on F or J visas of PRC nationals who wish to study or conduct research if they receive funding from, are currently employed or study at or have in the past conducted research on behalf of an entity in the PRC “that implements or supports the PRC’s ‘military-civil fusion strategy.’” This is defined as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities,” i.e., military ties.

The ban expressly exempts Chinese undergraduate students and provides other exemptions, including for spouses of U.S. citizens and legal permanent residents and members of the U.S. Armed Forces and their immediate family members.

It is not clear how broadly the new ban will be interpreted, but the Proclamation states that the covered individuals will be identified by the Department of State based upon recommendations from the Attorney General and the Secretary of Homeland Security.

The Proclamation also calls upon the Secretary of State to consider whether Chinese nationals currently in the U.S. on F or J visas should have those visas revoked to “mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”

Reportedly, just days before issuance of the Proclamation, Secretary of State Mike Pompeo was speaking to President Trump about cancelling the visas of some Chinese nationals with ties to China’s military currently in the U.S..

In Congress, Senators Tom Cotton (R-Ark.) and Marsha Blackburn (R-Tenn.) unveiled legislation (SECURE CAMPUS Act) that would codify the Proclamation. Companion legislation will be introduced in the House of Representatives by Congressman David Kustoff (R-Tenn.). The bill, aimed at safeguarding the nation’s security, would prohibit issuance of visas to Chinese nationals who want to do graduate or post-graduate study or research in the U.S. in any STEM fields. It does not include prospective students from Hong Kong or Taiwan.

Colleges and universities are concerned about the effects on international cooperation in education and research, as well as university finances. According to Reuters, “Some 360,000 Chinese nationals who attend U.S. schools annually generate economic activity of about $14 billion, largely from tuitions and other fees.”

Jackson Lewis attorneys are available to assist you with questions about this and other travel restrictions and bans.

Beginning 11:59 p.m. on May 26, 2020, travelers from Brazil will be restricted from entering the U.S. under President Donald Trump’s “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus.”

President Trump added Brazil to the list of countries subject to his previous ban because COVID-19 cases have been spiking in that country. Brazil joins the list of 30 other countries that includes the U.K., Ireland, China, Iran, and the 26 Schengen area countries. Foreign nationals who have been in these countries during the preceding 14 days will not be allowed to enter the U.S., unless they are exempted.

The list of exemptions is long. It includes:

  • Lawful permanent residents (LPRs), a.k.a. “Green Card Holders”
  • Spouses of U.S. citizens and LPRs
  • Parents or legal guardians of a U.S. citizen or LPR who is unmarried and under the age of 21
  • Siblings of a U.S. citizen or LPR who is unmarried and under the age of 21
  • Child, foster child, or ward or a U.S. citizen or LPR, or a prospective adoptee seeking to enter the U.S. in IR-4 or IH-4 classifications
  • Aliens traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the coronavirus
  • Aliens traveling as a nonimmigrant pursuant to crew member status (C-1, D, or C-1/D) or any alien otherwise traveling to the U.S. as air or sea crew
  • Aliens seeking entry or transiting in the following statuses: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 [as an employee of TECRO or TECO (Taipei Economic or Cultural Representative Office) or the employee’s immediate family members], G-1, G-2, G-3, G-4, NATO-1 through NATP-4, or NATO-6 status
  • Aliens whose travel falls within Section 11 of the United Nationals Headquarters Agreement
  • Members of the U.S. Armed Forces and their spouses and children
  • Any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the coronavirus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee
  • Any alien whose entry would further important U.S. law enforcement objectives, as determined by the Secretaries of State or Homeland Security or their respective designees, based on a recommendation of the Attorney General or his designee
  • Any alien whose entry would be in the national interest, as determined by the Secretaries of State or Homeland Security or their designees

The ban also does not affect eligibility for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

While these bans have been advertised as temporary, none of them have been terminated to date.

If you have questions about the restrictions and exemptions or the COVID-19 travel restrictions at the Northern and Southern borders, please reach out to your Jackson Lewis attorney. We will continue to provide updates as they become available.

 

DHS and CDC have announced a new travel restriction at the Southern and Northern borders due to the coronavirus (COVID-19) outbreak. According to the announcement, DHS will do what it can (including repatriation flights) to prevent the introduction of “affected individuals” into “congregate settings” at land ports of entries (POEs) or Border Patrol Stations at or near the Mexican and Canadian borders.

Basically, those “affected individuals” are undocumented individuals who end up remaining at POEs or Border Patrol Stations for hours and days or more. CDC is issuing this rule because the POEs and Border Patrol Stations simply do not have the medical equipment or facilities to deal with these large numbers of people safely during the pandemic.

The order does not apply to:

  • U.S. citizens, Lawful Permanent Residents, and their spouses and children;
  • Members of the U.S. armed forces, associated personnel, and their spouses and children;
  • Persons from foreign countries who hold valid travel documents;
  • Persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions; or
  • Persons DHS, in consultation with CDC, determines should be excepted based upon the totality of circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.

The order does not specifically address individuals appearing at the POE for in-person TN or L-1 applications. Although CDC probably did not intend to include this group of individuals as “covered aliens,” inconsistent interpretation by each individual POE is possible.

It was previously announced that individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until at least April 20, 2020. Non-essential purposes include travel for tourism, including, but not limited to, sightseeing, recreation, gambling, or attending cultural events.

This is on top of previously issued travel suspensions issued by President Donald Trump for individuals seeking entry from:

  • China (excluding Hong Kong and Macau);
  • Iran;
  • The 26 Schengen Zone Countries; and
  • The United Kingdom and Ireland.

There are still certain individuals from the following countries who cannot enter the U.S. due to Travel Ban 3.0:

  • Iran (again);
  • Libya;
  • Yemen;
  • Syria;
  • North Korea;
  • Somalia; and
  • Venezuela.

If you have questions about the various restrictions and bans, please reach out to a Jackson Lewis attorney. We will continue to provide updates on U.S. travel restrictions as they become available.

Several Presidential Proclamations suspending travel to the U.S. from abroad due to the outbreak of the Coronavirus (COVID-19) have been issued since January 31, 2020, each building upon the last. Now, restrictions on those traveling from the United Kingdom and Ireland have been added, according to the most recent proclamation, which outlines the short history of these proclamations and expands the restrictions.

By midnight EDT on March 16, 2020 (4:00 a.m. GMT on March 17), foreign nationals who are not yet in the air who have been in the United Kingdom or Ireland during the preceding 14 days will not be allowed to enter the U.S. The United Kingdom and Ireland joins the list of other restricted countries: China, Iran, and the 26 countries Schengen area countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

The goal is to prevent all excluded individuals from boarding aircraft, but covered individuals who arrive in the U.S. will be turned back. This includes individuals travelling under the visa waiver program pursuant to ESTA. Anyone subject to the proclamations who attempts to travel with ESTA will have their ESTA cancelled. Anyone who fraudulently or willfully attempts to circumvent these restrictions will be subject to removal. Air carriers also may be subject to fines for each banned individual they bring to the U.S.

These proclamations do not prevent U.S. citizens, legal permanent residents (“Green Card” holders), or close family members of U.S. citizens or legal permanent residents from entering the United States. Other exempted individuals include air or sea crew members, members of the U.S. Armed Forces and their family members, and certain types of foreign government officials. There are also some general exemptions for those whose entry would be in the national interest or whose entry does not pose a significant risk of spreading the virus. Individuals who enter under these exemptions will be subject to enhanced screening at 13 currently designated airports.

These restrictions will prevent:

  • Newly hired foreign nationals living abroad from coming to the U.S. to start employment; and
  • Foreign nationals living and working in the U.S. from travelling abroad and returning – even in emergency situations or to consular process.

We do not know how long these circumstances will last. The restrictions will remain in effect “until terminated” by President Donald Trump. To discuss questions regarding current hiring strategies and travel issues, please reach out to your Jackson Lewis attorney.

 

Chinese authorities have been using “exit bans” to prevent U.S. citizens from leaving China. In response, the U.S. State Department is continuing its Level 2 travelers’ warning to “exercise increased caution.” The advisory was originally issued in 2018 due to “arbitrary enforcement of local laws as well as special restrictions on dual U.S.-Chinese nationals.”

“China uses the exit bans coercively:

  • to compel U.S. citizens to participate in Chinese government investigations,
  • to lure individuals back to China from abroad, and
  • to aid Chinese authorities in resolving civil disputes in favor of Chinese parties.”

Under Chinese law, a Chinese citizen automatically loses Chinese citizenship upon gaining citizenship in another country. Nevertheless, Chinese security authorities have been treating Chinese nationals who have acquired U.S. citizenship as Chinese, not as U.S., citizens. Chinese citizens often are subjected to exit bans. For instance, Chinese activists are sometimes prevented from attending conferences abroad. Those subject to exit bans may not be held in detention, but they are not allowed to leave China.

In June 2018, two U.S. Citizens, Victor Liu and his sister Cynthia, were prevented from leaving China after visiting their grandfather. Cynthia was born in China, but Victor was born in the U.S. The siblings’ mother, a naturalized U.S. citizen, has been detained at a secret site. It appears that the Lius are being held as “human collateral” in an effort to force their estranged father, Liu Changming, back to China. Liu Changming fled China after he was convicted in a high-profile bank fraud case in 2008. Victor Liu is a student at Georgetown University and his sister works at McKinsey & Company in New York. They are still being prevented from leaving China despite U.S. government efforts to bring about their release. There are reports that two dozen U.S. citizens have been subjected to exit bans since 2016. While preventing someone from leaving a country contravenes the Universal Declaration of Human Rights, the practice continues.

Those who chose to travel to China, especially Chinese-born U.S. citizens, as the State Department notes, should exercise extreme caution. U.S. citizens may be detained without access to U.S. consular services and could be held for reasons related to “state security,” such as sending electronic messages critical of the Chinese government.

The State Department recommends taking such precautions as making sure to have all relevant identification and immigration documentation and joining the State Department’s Smart Traveler Enrollment Program (STEP). STEP is a free service that provides the latest security alerts and enables the U.S. embassy or consulate to contact you in an emergency.

The Canadian government has also issued a similar travel advisory for China.

This is general information about the Chinese exit bans. For specific advice on the risks of travelling to China, please reach out to your Jackson Lewis attorney.