A summary of current immigration restrictions as a result of the Covid-19 pandemic and available exemptions

As a result of the Covid-19 pandemic, and since March 2020, several immigration-related restrictions have been implemented, which include:

1. The physical presence travel restrictions for certain travelers from China, the 26 Schengen Area countries, the United Kingdom, Ireland, Iran and Brazil. Travel is also restricted between the United States and Canada (i.e., only essential travel is permitted).
2. The suspension of entry to the United States of persons who do not possess a valid immigrant (permanent) visa.
3. The suspension of entry of many H, L and J nonimmigrant visa workers.

As we have previously reported, each of the above restrictions provides a list of exemptions and, on July 16, 2020, the State Department updated and addressed this list. A summary of the restrictions and the available exemptions is below.

Physical Presence Travel Restrictions

President Trump, via several executive orders and proclamations, announced that certain nonimmigrant visa holders who have been physically present in any of the above-listed countries within 14 days before traveling to the United States will not be permitted to enter the country. These travel restrictions do not apply to:

• any lawful permanent resident of the United States;
• any alien who is the spouse of a US citizen or lawful permanent resident;
• any alien who is the parent or legal guardian of a US citizen or lawful permanent resident, provided that the US citizen or lawful permanent resident is unmarried and under the age of 21;
• any alien who is the sibling of a US citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
• any alien who is the child, foster child, or ward of a US citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
• any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
• any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crew member or any alien otherwise traveling to the United States as air or sea crew.

In its recent announcement, the Department of State clarified that certain travelers may qualify for a National Interest Exception (NIE) such that their physical presence in the Schengen Area, the United Kingdom, and/or Ireland would not preclude their entry to the United States. Those who are eligible to request the NIE include:

1. Those with valid ESTA registrations for business travel;
2. Students traveling in F, M, and J status, (though J-1 students must seek a national interest waiver at a US consular post before traveling); and
3. E-1/E-2 treaty traders and investors.

Immigrant and Nonimmigrant Visa Restrictions

On June 22nd, 2020, President Trump expanded Presidential Proclamation 10014, “Suspending Entry of Immigrants Who Present Risk to the US Labor Market During the Economic Recovery Following the COVID-19 Outbreak” to suspend the entry of many H, L, and J nonimmigrant visa workers.

The new Proclamation took effect at 12:01 a.m. EDT on June 24, 2020, and will be in place through December 31, 2020.

The proclamation also extends the existing ban on certain immigrant (permanent visa) entries through December 31, 2020, but does not impact the pursuit of a green card from within the United States.

Who is Affected?

The proclamation restricts the entry of the following categories of nonimmigrants if they were outside of the United States as of 12:01 a.m. EDT on June 24 and do NOT hold a valid visa, advance parole, or other US travel document:

• 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.

Who is NOT Affected?

The following individuals are exempt from the entry ban:

• Foreign nationals present in the United States at 12:01am EDT on June 24, 2020, including those in the United States awaiting a change of status under the FY 2021 H-1B cap;
• Canadian passport holders who are not required to obtain a visa to enter the United States.
• Foreign nationals holding a valid visa in one of the restricted categories (H-1B, H-2B, L-1, or J-1) on June 24, 2020, even if they are outside of the United States when the ban takes effect, and who are seeking entry to the United States pursuant to that visa.
  • Foreign nationals in the United States with an expired visa in one of the restricted categories on June 24, or those whose visa in one of the restricted categories will expire prior to any planned international travel may still experience difficulty or delays obtaining a new H, L or J visa while abroad and while the proclamation is in force.
  • Those holding a valid visa in another category – such as F-1 or B-1 – will not be able to obtain a new H, L or J visa while the proclamation is in force, though changes of status within the United States should not be affected, including changes of status to H-1B.
  • Foreign nationals who are outside of the United States with an expired visa in one of the restricted categories may be unable to renew or obtain a new H, L, or J visa absent a waiver while the proclamation is in force, even if they had a valid visa in one of the restricted categories on June 24, the effective date of the proclamation.
• Foreign nationals holding a valid advance parole, or other US travel document on June 24, 2020, even if they are outside of the United States when the ban takes effect;
• US lawful permanent residents;
• The spouse or child of a US citizen;
• J-1 exchange program participants other than interns, trainees, teachers, camp counselors, au pairs, and summer work travel participants;
• Foreign nationals entering to provide temporary labor or services essential to the US food supply chain; and
• Foreign nationals whose entry would be “in the national interest” as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

In its July 16, 2020, announcement, the Department of State further clarified that the following exemptions are also available:

• Spouses and children of H, J, and L visa holders who (as the principal) are already exempt.
• H, J, and L visa applicants whose work is critical to US foreign policy objectives (including Covid-19 response) and falls under one of the following categories:
  • For H-1Bs, 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 US government agency or entity to meet critical US foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another US government agency, performing research, providing IT support/services, or engaging other similar projects essential to a US government agency.
  • For H-2Bs, exceptions are available in this situation:
    • Travel based on a request from a US government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting US 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 US 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 US 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 US 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 US 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 US 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.
• Child immigrant visa applicants who are in danger of “aging out” by January 14, 2021 (i.e., who will turn 21 and will no longer be considered a dependent of the principal applicant).

We will continue to monitor the implementation of the Proclamation and the process for requesting the NIE, keep abreast of any additions and interpretation/definitions, and notify you of any material changes.