COVID & Immigration: What You Need to Know
Berardi Immigration Law has you covered when it comes to dealing with immigration needs during the COVID-19 pandemic. See below for the latest updates and be sure to follow us on Twitter, Facebook, and LinkedIn for more info.
COVID-19 Travel Bans
Several Presidential proclamations established restrictions on the entry of certain travelers into the United States in an effort to help slow the spread of COVID-19. Foreign nationals will be barred from entering the United States if they have visited any of the following countries within 14-days of seeking admission:
- European Schengen Area (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, Switzerland, Monaco, San Marino, Vatican City);
- United Kingdom (England, Scotland, Wales, Northern Ireland);
- Republic of Ireland; or
This travel ban does not apply to U.S. citizens, lawful permanent residents, their spouses, and children under 21, and certain other family members. The travel restrictions will remain in effect until terminated by President Trump or the incoming Biden Administration. Certain foreign nationals may be eligible for a national interest exception from this COVID-19 public health ban.
Air travelers who are exempt or have received an exception to the COVID-19 health bans on travel from the above countries may fly into any U.S. international airport. Previously, these travelers were limited to entry through 15 designated U.S. airports. See the official notice from U.S. Customs and Border Protection (“CBP”) and the Transportation Security Administration (“TSA”).
Exceptions from Restrictions on Travel from the Schengen Area, the United Kingdom, and Ireland
In July 2020, the State Department clarified that the following groups of foreign nationals may be able to enter the United States in spite of having been present in the Schengen Area, the United Kingdom, or Ireland within 14-days of attempted entry to the United States:
- Those with valid ESTA registrations for business travel;
- Students traveling in F, M and J status, (though J-1 students must seek a national interest waiver at a U.S. consular post before traveling); and
- E-1/E-2 treaty traders and investors.
National Interest Exemption from Presidential Proclamations 9984, 9992, 9993, and 9996 re: COVID-19 for Certain Professional Athletes and their Essential Staff and Dependents
In May 2020, the Department of Homeland Security (“DHS”) Acting Secretary Chad F. Wolf signed an order that exempts certain foreign professional athletes who compete in professional sporting events organized by certain leagues, including their essential staff and their dependents, from proclamations barring their entry to the United States. The order signed May 22, 2020, states that it is in the national interest to except aliens who compete in professional sporting events organized by certain professional sporting groups, including their professional staff, team and league leadership, spouses, and dependents from entry restrictions laid on in Proclamations 9984, 9992, 9993, and 9996. Together, these proclamations suspend the entry of all aliens who were physically present within the People’s Republic of China (excluding the Special Administrative Regions of Hong Kong and Macau), the Islamic Republic of Iran, the Schengen Area, the United Kingdom, and the Republic of Ireland, during the 14-day period preceding their entry or attempted entry into the United States.
DHS will work with the professional sporting groups to identify the specific athletes, essential staff, team and league leadership, spouses, and dependents covered by this exemption, including Major League Baseball, the National Basketball Association, the Women’s National Basketball Association, the Professional Golfers’ Association Tour, the Ladies Professional Golf Association Tour, the National Hockey League, the Association of Tennis Professionals, and the Women’s Tennis Association.
This order does not exempt individuals from inspection by CBP or any other agency requirements. The Acting Secretary may add or remove those exempted from the list based on assessments of national interest, including the plans of the relevant professional sporting groups to support sporting events in the United States that do not cause an unnecessary risk to the public health. On May 28, 2020, Acting Secretary Wolf met with International Motor Sports Association (“IMSA”) and NASCAR executives, and confirmed motorsports has been included in this order.
The Centers for Disease Control and Prevention Expands Negative COVID-19 Test Requirement to All Air Passengers Entering the United States
On January 12, 2021, the Centers for Disease Control and Prevention (“CDC”) announced it will require all air passengers entering the United States to present a negative COVID-19 test, taken within 72-hours of departure. Airlines must confirm the negative test results for all passengers before boarding. Airlines must deny boarding of passengers if they do not provide documentation of a negative test or recovery. Once arrived in the United States, the CDC recommends getting tested again in 3-5 days and stay home for 7-days post-travel. This order was signed by CDC Director Robert R. Redfield, MD, and will become effective on January 26, 2021.
Land Border Travel Bans
On March 24, 2020, the Department of Homeland Security (“DHS”) in conjunction with CBP announced the decision to “temporarily” limit the travel of individuals from Canada and Mexico into the United States at land ports of entry along the United States-Canada and United States-Mexico borders to “essential travel.” The initial ban was originally scheduled to expire on April 20, 2020. However, due to the “risk of continued transmission and spread of the virus associated with COVID-19” between these countries, the ban has been extended several times in one-month increments.
On December 22, 2020, the Secretary of Homeland Security announced the decision to continue to limit the travel of individuals from Mexico and Canada into the United States via land ports of entry along the southern and northern borders. This latest extension is scheduled to expire on January 21, 2020. This policy may be reviewed for possible extension in January if the COVID-19 concerns remains ongoing.
Please note, these restrictions do not affect air travel. U.S. citizens, lawful permanent residents, business travelers, and those with valid U.S. travel documents are exempt from the border restrictions. It is possible business travelers could face additional scrutiny at the border.
CBP defines “non-essential” travel as travel that is considered tourism or recreational in nature (e.g., sightseeing, recreation, gambling, or attending cultural events). “Essential” travel through the land ports of entry and ferry terminals along the United States’ southern and northern border includes, but is not limited to:
- U.S. citizens and lawful permanent residents returning to the United States;
- Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
- Individuals traveling to attend educational institutions;
- Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);
- Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
- Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
- Individuals engaged in official government travel or diplomatic travel;
- Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
- Individuals engaged in military-related travel or operations.
Suspension of Entry of Immigrants and Nonimmigrants – Presidential Proclamations 10014 & 10052
On December 31, 2020, President Trump signed a Presidential Proclamation, Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market. This proclamation extends Presidential Proclamations (“P.P.”) 10014 and 10052 through March 31, 2021. P.P. 10014 suspends the entry to the United States of certain immigrant visa applicants, while P.P. 10052 suspends the entry to the United States of certain nonimmigrant visa applicants who present a risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.
Who is subject to the nonimmigrant entry ban? The H/L/J nonimmigrant proclamation (P.P. 10052), initially issued in June 2020, still only affects the following categories of nonimmigrants:
- H-1B and H-2B nonimmigrants;
- L-1A executives and managers;
- L-1B specialized knowledge workers;
- J-1 interns, trainees, teachers, camp counselors, au pairs, and Summer Work Travel participants; and
- Their dependent spouses and children.
Foreign nationals applying for visas in any of the above categories are subject to the ban if they meet all three of the following criteria:
- They were outside the United States at 12:01AM EDT on June 24, 2020;
- They did not hold a U.S. nonimmigrant visa in one of the above visa categories on June 24, pursuant to which they are seeking entry to the United States; and
- They do not hold an advance parole or other U.S. travel document (other than a nonimmigrant visa) pursuant to which they are seeking entry to the United States.
Who is exempt from the nonimmigrant entry ban? The following categories of individuals are not subject to the nonimmigrant ban outlined in P.P. 10052:
- A foreign national who was present in the United States on June 24, 2020;
- A foreign national who held a valid visa on June 24 in one of the restricted categories pursuant to which the individual seeks to reenter the United States;
- A foreign national who holds a valid advance parole or other U.S. travel document (other than a nonimmigrant visa) pursuant to which the individual seeks to enter the United States;
- Canadian nationals who are visa-exempt;
- U.S. lawful permanent residents;
- The spouses and children of U.S. citizens;
- J-1 exchange program participants other than interns, trainees, teachers, camp counselors, au pairs, and Summer Work Travel participants;
- Certain foreign nationals entering the United States to work in positions essential to the U.S. food supply chain (generally H-2B only); and
- Those whose entry is deemed to be in the U.S. national interest, in the discretion of the U.S. government, also known as the national interest exceptions (“NIE”).
Please note, foreign nationals who are exempt from the H/L/J proclamation remain subject to ongoing COVID-19 public health travel bans and reduced consular operations abroad, which could impede their ability to enter or reenter the United States.
Who is subject to the immigrant entry ban? Under P.P. 10014—which originally set to expire on December 31, now extended through March 31, 2021—U.S. consulates will not issue employment-based, family-based or Diversity Lottery immigrant visas during this period. There are limited exceptions for the following categories of individuals:
- U.S. lawful permanent residents;
- Spouses of U.S. citizens;
- Children under 21 of U.S. citizens and prospective adoptees in the IR-4 or IH-4 visa classifications;
- Foreign nationals seeking to enter on an immigrant visa as a healthcare professional, as well as their spouses and unmarried children under 21;
- Applicants for EB-5 immigrant visas; and
- Those whose entry would be in the national interest.
What is the future of these immigrant and nonimmigrant entry bans? Under the most recent proclamation, P.P. 10014 and 10052 are currently in effect through March 31, 2021. However, Presidential proclamations can be reversed by the issuance of a subsequent proclamation. Although President-elect Biden has not addressed whether he will rescind the H/L/J nonimmigrant and/or immigrant entry ban after taking office, it is anticipated that all Trump Administration immigration bans will at least be reviewed for potential rescission by the Biden Administration.
National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants
The State Department released guidance on qualifying for national interest exceptions (“NIE”) to Presidential Proclamations (“P.P.”) 10014 and 10052. Together, these proclamations suspend the entry to the United States of certain immigrant and nonimmigrant visa applicants who present a risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak. Both include exceptions, including an exception for individuals whose travel would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. Until complete resumption of routine visa services, applicants who appear to be subject to entry restrictions under P.P. 10014, P.P. 10052, and/or regional-focused Presidential Proclamations related to COVID-19 (i.e., P.P. 9984, 9992, 9993, 9996, and/ or 10041) might not be processed for a visa interview appointment unless the applicant also appears to be eligible for an exception under the applicable Proclamation(s).
Applicants who are subject to any of these Proclamations, but who believe they may qualify for a national interest exception or other exception, should follow the instructions of the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception. While a visa applicant subject to one or more Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request and a final determination regarding visa eligibility will be made at the time of visa interview.
An H-1B visa applicant who can establish that his or her travel is necessary “to facilitate the immediate and continued economic recovery of the United States” may be eligible for a national interest exception. The applicant must establish that at least two of the following criteria apply:
- The employer has an ongoing need for the employee as demonstrated by a labor condition application (“LCA”) approved by the U.S. Department of Labor (“DOL”) during or after July 2020. If the DOL approved the LCA prior to July 2020, the employer must prove that it (the employer) continues to have a need for the employee.
- The applicant holds a senior-level position, has unique and vital job duties, or has specialized qualifications that indicate that he or she “will provide significant and unique contributions to an employer meeting a critical infrastructure need…Employment in a critical infrastructure sector alone is not sufficient[.]”
- “Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.”
- “The wage rate paid to the H-1B [employee] meaningfully exceeds the prevailing wage rate by at least 15 percent.”
- The applicant’s “education, training and/or experience demonstrates unusual expertise in the specialty occupation in which the applicant will be employed.”
- “Denial of the [H-1B] visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.”
An L-1A visa applicant who can establish travel to fill “a critical business needs of an employer meeting a critical infrastructure need” may also be eligible for a national interest exception. The applicant must establish that at least two of the following criteria apply:
- The employee “[w]ill be a senior-level executive or manager”;
- The employee “[h]as spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship”; or
- The employee “[w]ill fill a critical business need for a company meeting a critical infrastructure need.”
Please note, “L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.”
An L-1B visa applicant may be eligible for a national interest exception if the applicant can establish that he or she is “a technical expert or specialist meeting a critical infrastructure need” and meets all three of the following criteria:
- The employee’s “proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company”;
- The employee’s “specialized knowledge is specifically related to a critical infrastructure need”; AND
- The employee “has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.”
National interest exceptions are available for those who will accompany or follow (i.e., H-4, L-2, and J-2) to join a principal applicant who is a spouse or parent and who has been granted a national interest exception to P.P. 10052.
Please note that U.S. Embassies and Consulates may only be able to offer limited visa services due to the COVID-19 pandemic, in which case they may not be able to accommodate your request unless the proposed travel is deemed emergency or mission critical. Travelers who are subject to a regional COVID-19 Proclamation but who do notrequire a visa, such as ESTA travelers (i.e., those traveling on the Visa Waiver Program), should also follow the guidance on the nearest Embassy or Consulate’s website for how to request consideration for a national interest exception. Travelers are encouraged to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.
Entry rules and restrictions are constantly in flux as the COVID-19 pandemic continues. Make sure you stay up to date on the latest requirements for travel, testing, and quarantine before you make any plans to enter the United States. Berardi Immigration Law will continue to keep an eye out for updates and adjust our COVID-19 resource center accordingly. We are committed to providing our clients with the most up to date immigration news. Be sure to subscribe to our blog and follow our social media accounts for more important updates on COVID-19 travel protocols!