There are many gray areas and uncertainties surrounding the proclamation issued on March 11, 2020 (effective March 13, 2020 the “Proclamation”), which suspended, until further notice, the entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the Schengen Area (included China and Iran) during the 14-day period preceding their entry or attempted entry into the United States. On March 16, 2020 this ban has been extended to travelers coming from the United Kingdom and Ireland.
The Proclamation provides exceptions to the temporary suspension of entry of travelers. In particular, the suspension does not apply to:
- any lawful permanent resident of the United States (“Green Card” holders);
- any alien who is the spouse, child, foster child, or ward of a U.S. citizen or lawful permanent resident;
- any alien who is the parent, legal guardian or sibling of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
- 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 an air or sea crewmember;
- any alien seeking entry into or transiting the United States pursuant to one of the following visas: 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 or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories);
- any alien whose entry would be in the national interest;
- members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.
The entry into the United States is allowed to close relatives of permanent residents or American citizens. However, only spouses and children of permanent residents or US citizens can enter the United States without any restrictions whatsoever. On the other hand, parents, brothers and sisters, are exempt from entry restrictions only if their relative resident in the United States or US citizen is under the age of 21 and is not married.
In reference to holders of non-immigrant visas, the US Department of State recently allowed holders of H1B or L1 work visas to return to the United States to resume their work at the same company. In addition, effective July 15, 2020, those traveling as students (F1 and M1), researchers (certain J1 programs), investors (E2), or business travel (B1) could resume traveling to the United States if they qualify as a National Interest Exception (NIE). The exception has to be determined by a consular officer. The consular officers may take up to 60 business days for the review of documents and qualifications and they cannot accept requests for individuals who are currently physically present in the United States. The exception is valid only for 30 days from the date of approval and is valid for a single entry to the United States. An individual who departs the United States and wishes to return must be re-assessed for a national interest exception. F and M visa holders do not need to be re-approved for each entry to the United States. Applicants in these categories should carefully read the information provided through the link in the National Interest Exceptions sidebar box on the consular page of the foreign country.
Please consider that in any case, the entry into the United States is left to the exclusive and final decision of the CBP officers, who can make a decision either in a negative or positive way. Recently some clients and acquaintances of our law firm, holders of non-immigrant visas or ESTA travel authorizations were allowed to enter into the US territory.
The official website of the CBP Agency, the entity that issues ESTA travel authorizations, states that any traveler with a valid ESTA who is subject to the proclamation of March 13, 2020 and who attempts to travel to the United States in violation of the Proclamation will have their ESTA canceled (https://esta.cbp.dhs.gov). After ESTA cancellation, it will be possible to travel to the United States only upon request for a new travel authorization or tourist visa in case of denial of the travel authorization. Due to these reasons, all those who are about to travel to the United States are advised to carefully consult the website of the U.S. Department of State, the one of the United States Embassy and Consulates in the foreign country, as well as the respective airline.