Update on U.S. Entry Limita... | Lippes Mathias LLP

Update on U.S. Entry Limitations and Restrictions

May 20, 2021 | Immigration Blog

It’s been 14 months since COVID changed the way we travel across borders, and our ability to do so worldwide. As the pandemic continues to impact countries across the globe, the United States is seeing its lowest numbers of new COVID cases since June 2020—which is being largely attributed to the high numbers of U.S. persons who are being vaccinated or have received the COVID-19 vaccine.

In light of this, we are fielding many questions about whether and when travel restrictions for those coming to the U.S. from historically higher-COVID areas will be easing. As of May 19, 2021, the following restrictions and limitations still remain in place:

Many U.S. Embassies and Consulates continue to have restricted services: Despite the fact that the U.S. Department of State purportedly began a “phased reopening” of its U.S. Embassies and Consulates worldwide back in July 2020, the vast majority of U.S. diplomatic posts continue to offer very restricted services. Many only offer U.S. citizen services, (limited) immigrant services, and emergency or essential worker nonimmigrant services, and are coping with extreme backlogs in case processing due to having periodic shut-downs or restrictions in the services they could provide over the last 14 months. Service availability seems to be dependent on available Department of State resources, case backlogs and current COVID conditions locally.

Presidential Proclamations and Other Policies Limiting Visa Issuance: Presidential proclamations and policy changes that remain in place and continue to impact the availability of visas, despite the gradual resumption of services, include:

Proclamation 9984 (January 31, 2020), which suspended travel to the U.S. by foreign nationals who were physically present in the People’s Republic of China (excluding the Special Administrative Regions of Hong Kong and Macau) within the 14 days preceding entry or attempted entry into the United States.
Proclamation 9992 (February 29, 2020), which suspended travel to the U.S. by foreign nationals who were physically present in Iran within the 14 days preceding entry or attempted entry into the United States.
Proclamation 9993 (March 11, 2020), which suspended travel to the U.S. by foreign nationals who were physically present in any Schengen Area country within the 14 days preceding entry or attempted entry into the United States.
Proclamation 9996 (March 14, 2020), which suspended travel to the U.S. by foreign nationals who were physically present in the UK or Republic of Ireland (with certain exemptions, such as for certain major-league international athletes, staff and dependents whose presence in the U.S. is considered in the national interest) within the 14 days preceding entry or attempted entry into the United States.
Proclamation 10041 (May 24, 2020, amended May 25, 2020 in Proclamation 10042), which suspended travel to the U.S. from Brazil by anyone who has been in the country within the 14 days preceding entry or attempted entry into the United States.
Proclamation 10043 (May 29, 2020), which suspended nonimmigrant entries into the U.S. by any national of the People’s Republic of China seeking to enter the United States pursuant to an F or J visa to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy.”
Proclamation 10199 (April 30, 2021), which suspended nonimmigrant travel to the U.S. by foreign nationals who were physically present in India within the 14 days preceding entry or attempted entry into the United States.

Other Presidential Proclamations that are no longer in place, but still impacting visa availability and resource allocation at U.S. Embassies and Consulates around the world, include:

Proclamation 10014 (April 22, 2020, as subsequently continued in Section 1 of Proclamation 10052 (June 22, 2020) and Proclamation 10131 (December 31, 2020)), which suspended immigrant visa issuance (with several exceptions, including for spouses and minor children of United States citizens (USCs) and legal permanent residents (LPRs), parents of U.S. citizens and Legal Permanent Resident minors, EB-5 applicants with approved petitions, and others)
Proclamation 10052 (June 22, 2020), which suspended nonimmigrant visa issuance to H-1B, H-2B, L-1 and most J-1 applicants, as well as their dependents.

Travelers Whose Entries are Considered in the National Interest

U.S. entry by the following types of travelers is considered in the national interest for purposes of exceptions to the geographic COVID Presidential Proclamations:

Immigrants (not applicable to the restrictions under Proclamation 10199, which only covers nonimmigrant travel)
Fiancé(e)s
Students and certain academics covered by exchange visitor programs.
Travelers who are seeking to provide vital support for critical infrastructure sectors or directly linked supply chains.
Journalists
Pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance, including individuals who are traveling to the United States on B-1/B-2, B-1, or M-1 visas, or Visa Waiver Program authorizations. This also include certain M-2 dependents when the principal visa holder’s necessary training is four weeks or longer.
Certain exchange visitors, including:
- Travel by an au pair to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status when the au pair possesses special skills required for a child with particular needs (e.g., medical, special education, or sign language).
- 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 or ward of a medical or other public funded institution.
- Travel by an au pair to provide childcare services for a child whose parents are involved with giving medical care to individuals who have contracted COVID-19, or who are conducting medical research at United States facilities to help the United States combat COVID-19.
- Travel for 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 June 24, 2020, such as https://eca.state.gov/fulbright.
- Travel by 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.
- Travel by 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.
- Travel in support of critical foreign policy objectives: This only includes exchange visitors participating in a small number of exchange programs that fulfill critical and time sensitive foreign policy objectives.
Derivative family members accompanying or following to join a noncitizen who has been granted, would be reasonably expected to receive an NIE, or is otherwise not subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.

The U.S. Department of State also continues to grant National Interest Exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. These travelers and any others who believe their travel to be in the United States’ national interest should also review the website of the nearest U.S. Embassy or Consulate for instructions on how to contact them. Travelers in these categories who wish to visit the United States and have a valid visa in the appropriate class, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. Embassy or Consulate before traveling.

E Visa Update

Individuals with submitted Department of State forms DS-160 who are awaiting system availability for E visa interviews—not including new E visa applicants, who are required to wait for Department of State notification before scheduling their interviews—should continue to check the visa appointment scheduling website for their desired country to see whether visa appointments are available, and check at least daily for updates. Unfortunately, most locations are still experiencing significant delays in availability of visa interviews. Please be aware that should there be a spike in COVID-19 cases in any given location, it is possible that the Department of State could also cancel scheduled appointments in the future—but all signs point to the Department of State making a concerted effort to resume services, in most locations, if and when reasonable in the near future.

Evolving Situation

Government immigration actions are likely to continue to be fluid depending on changes in the COVID-19 pandemic landscape throughout the remainder of 2021. Discussion continues at the highest levels of the U.S. government about reforming the U.S. immigration system in a way that is equitable, sustainable and responsible, but contention remains surrounding which immigration priorities should drive systemic reform. As such, it is not anticipated that a full-scale overhaul of the U.S. immigration system will be passed into law any time soon. At this stage, U.S. immigration changes are more frequently driven by the policy considerations and priorities of the dominant political party in office.

Please contact your LMWF immigration team with any questions regarding this post or other changes impacting U.S. immigration.

Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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