What a strange and unpredictable year this has been! As countries start to open up their borders to international travelers, the most common question we have been getting over the last few months has been, "Can I travel to the US?" Unfortunately the very lawyerly answer is: "It depends." It depends what country you are coming from. It depends if you have a visa and in what visa category you intend to travel to the US. It depends on whether you have a Green Card. It depends on whether you have a legal permanent resident or US citizen relative. It may even depend on what exactly you intend to do in the US. Below we will try to unravel some of these issues but in many cases there are no clear answers. One caveat: the information about travel to the US is changing on an almost daily basis, therefore more than ever before, if you intend to travel to the US, it is vitally important you check with an immigration lawyer for specific advice on your individual circumstances.
Of course, it goes without saying if you are unwell with COVID-19 or COVID-19-like symptoms or have been in contact with someone who has been unwell you should not board a plane and travel to the US.
Why can’t I travel to the US as normal?
As a result of the COVID-19 pandemic most countries in the world have issued travel restrictions and bans for international travelers crossing their borders. Initially on January 31, 2020, March 11, 2020, and March 14, 2020, the US issued several travel restrictions given concerns about the risk of the transmission of COVID-19 by travelers from China, the Schengen area, UK and Ireland. In May, Brazil was added to the list of countries subject to these restrictions. These proclamations restrict travel to the US for people who have been physically present in the countries listed for fourteen days prior to their flight to the US but make exceptions for US citizens and Green Card holders and their family members amongst others. All remain in place as of the date of publication of this post. In March 2020, travel between the US and Mexico and Canada was also restricted to essential travel, again because of the risks of COVID-19 transmission.
On April 22, 2020, and June 22, 2020 (amended on June 29, 2020), additional restrictions were put in place for Green Card applicants and certain H-1B, L and J visa holders who were based abroad. These restrictions prevent the listed categories of visa holders from entering the US until December 31, 2020, in order to protect the US job market. (UPDATE JANUARY 6, 2021: In late December 2020, President Trump extended the bans for certain employment-based work visas and Green Cards for those abroad through March 31, 2021.) As with the earlier restrictions there are exemptions for certain family members of US citizens or lawful permanent residents, and others.
In addition to the various proclamations, beginning on March 20, 2020, US consular posts worldwide suspended normal consular operations, including routine visa services. Essentially, US Embassies and Consulates around the world stopped issuing visas and suspended many of their operations as a result of COVID-19 and in-country stay at home orders. This meant that even if someone was allowed to travel to the US, they could not do so if they didn’t already have a visa stamp in their passport.
Many countries whose residents were not subject to the US travel restrictions, instituted their own partial or complete restrictions for people entering the country and even on their nationals leaving the country. All of this resulted in an almost complete shutdown of international travel in March, April and May. Starting in June, and now in July we have seen a slow re-opening and easing of some restrictions, permitting travel to the US in limited circumstances. As of July 15, 2020, US Embassies/Consulates are also gradually re-opening around the world. Consular services and visa issuance are slowly resuming with decisions about when to open the US Embassy/Consulate based on country conditions relating to the risk of COVID-19 transmission. As travel increases, whether you can travel to the US will depend on which set of travel restrictions applies to you, where you are coming from and the purpose of your trip.
COVID-19 Transmission Risk Restrictions
Currently, if you are physically based in China, Iran, the Schengen area, UK, Ireland or Brazil, regardless of your visa category, you may not travel to the US, unless you fall under the exceptions listed in the proclamation. As mentioned above, family members of US citizens and Green Card holders are exempted from these restrictions. For example, if a UK national living in the UK with a valid I visa has a US citizen spouse, he may travel to the US on the I visa along with a copy of his marriage certificate. Additionally, these restrictions are not related to the individual traveler’s country of nationality but rather apply to the country from where they are traveling. Therefore, if an Italian national with an O-1, for example, spends two weeks in Mexico, she may travel by plane to the US from Mexico at the end of the two weeks. That same Italian national may not travel directly from Italy unless she falls under an exemption in the proclamation.
In the last few days, US Embassies and Consulates have also started considering national interest exemptions (“NIE”) for certain visa applicants. Each US Embassy/Consulate interprets what constitutes a national interest slightly differently so you must check the instructions on the US Embassy or Consulate website to determine if you fall under the criteria specified. If you are granted an NIE, you may travel directly to the US from the country of residence providing you have a visa and valid passport and meet all other requirements. Upon arrival in the US, you must follow all state and federal quarantine guidelines.
Protecting the US Job Market Restrictions
On April 22, 2020, the president issued a proclamation suspending the issuance of Green Cards to those who are applying outside the US in order to allegedly protect the US job market. On June 22, 2020 (amended on June 29, 2020), this suspension was extended until the end of 2020. This proclamation does not apply to anyone applying for a Green Card through adjustment of status in the United States. The suspension does not apply to spouses and children of US citizens, Green Card holders, physicians, nurses and medical professionals, and investors. If you don’t fall under one of the enumerated exceptions, and if you were scheduled for an appointment for a Green Card at the US Embassy abroad prior to April 22, 2020, it has likely been canceled and may not be scheduled or approved until 2021.
The June 22, 2020, presidential proclamation (amended on June 29, 2020) also restricted travel to the US, until December 31, 2020, for:
H-1B and H-2B visa holders and their dependents;
Certain J-1’s and their dependents; and
L-1’s and their dependents.
These restrictions were also put in place with the intention of protecting the US job market for US workers. If you were in the United States on June 24 in H-1B, J or L status you were not affected by this proclamation. You are also not affected by this proclamation if you are applying for a visa in a category not specifically listed (e.g., O, P, F, I, or M). Additionally if you were outside the United States but have a valid US visa in H-1B, H-2B, J or L categories you may use that visa for as long as it is valid and continue to travel to the US. If you need to apply for a new H-1B, H-2B, J or L visa at a US Embassy/Consulate abroad, even once that US Embassy/Consulate resumes visa issuance, it will not likely be able to issue you a visa until January 2021 unless you fall under one of the exceptions.
If you currently have a visa and intend to travel internationally or if you are planning to return to the US, it is important to speak to your lawyer to understand your options. The guidance from the Department of State is frequently updated to address various scenarios or to clarify the language of the proclamation. You should also remember that if you are not subject to the job market restrictions, you may still be subject to the COVID-19 transmission risk restrictions mentioned earlier.
Leaving the US
Just as the US has travel restrictions in place, many other countries in the world have their own restrictions. For example, on the date this was posted, anyone physically present in the United States in the fourteen days preceding their travel, may not travel to the Schengen area or UK. Most countries also currently require that you quarantine for fourteen days after international travel. Some countries have restrictions on people departing even for their own citizens and of course there is the ever present risk of additional lockdowns if the risk of COVID-19 transmission rises. Therefore it is important to check the rules and restrictions for your travel to any country before you enter.
As we enter this new phase, where borders slowly re-open, even while some are imposing tighter restrictions, we hope the preceding gives you a framework in which to think about whether and when you will travel, and biased though we are, it is very important to consult your lawyer for guidance and for the updated rules. You can bet the moment we publish this post, things will change but we will try to post updates as soon as we are able. Safe travels!
UPDATE JANUARY 19, 2021: The Centers for Disease Control and Prevention (CDC) issued an order effective January 26, 2021, requiring proof of a negative COVID-19 test or documentation of having recovered from COVID-19 for all international air passengers arriving from a foreign country to the US. Under this order, nearly all travelers aged two or older including US citizens must show a negative viral test within three days of departure or documentation of recovery from COVID-19. The testing requirement does not invalidate the travel restrictions that are still in place; however, on January 18, the Trump administration issued a proclamation rescinding certain country-based travel restrictions to take effect on January 26. The incoming Biden administration subsequently suggested that they would not rescind the travel restriction. We expect to know more in the coming weeks and will update the post accordingly.
UPDATE JANUARY 26, 2021: On January 25, 2021, President Joseph Biden issued a proclamation to reinstate the Brazil, United Kingdom, Ireland, and Schengen Area travel restrictions that were set to be rescinded on January 26, 2021. Additionally, effective January 30, President Biden added South Africa as a country from which travel to the US is restricted because of the COVID-19 variant in that country. President Biden’s proclamation restricts most non-US nationals who have visited one of the restricted countries in the past fourteen days from entering the US. The same exemptions as described above remain. In all cases, individuals will have to show a negative COVID-19 test within seventy-two hours of travel.
UPDATE MAY 2021: Over the past few months our blog has covered key updates regarding the revocation of the suspension of immigrant visas to those outside the US, the expiration of the suspension of entry for certain H-1B, H-2B, J, and L nonimmigrants , and the suspension of travel due to COVID-19 for certain nonimmigrants and noncitizens arriving in the US from India.
On February 24, 2021, President Biden signed a proclamation revoking former President Trump’s suspension of the issuance of immigrant visas (Green Cards) to those outside the United States. Specifically, President Biden’s proclamation revokes the suspension of entry imposed in Proclamation 10014 (April 22, 2020), as extended by section 1 of Proclamation 10052 (June 22, 2020), and section 1 of Proclamation 10131 (December 31, 2020).
On March 31, 2021, President Biden let former President Trump’s Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expire. Consequently, the Department of State (DOS) noted that “visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing Visa Services Operating Status Update guidance.” Additionally, DOS notes that visa applicants who were previously refused visas due to the restrictions of Presidential Proclamation 10052 may now reapply by submitting a new application along with a new fee.
Additionally, on April 30, 2021, President Biden issued a Presidential Proclamation which imposes COVID-19-related travel restrictions on certain individuals traveling into the US from India effective Tuesday, May 4, 2021 in an effort to prevent the further spread of COVID-19. The proclamation restricts and suspends the entry into the US of nonimmigrants and noncitizens of the US who were physically present within India during the fourteen-day period preceding their entry or attempted entry into the United States.