What do the U.S. Travel Restrictions Mean for Business? A U.S. Immigration Attorney's Views
This article was written by Marin Ritter, Partner & Co-Director at Green and Spiegel Midwest, LLC on April, 5th, 2021.
Travel restrictions put in place by the Trump Administration, both before and during the pandemic, have greatly impacted short and long-term immigration to the United States. These restrictions have been changing rapidly since President Biden took office in January 2021, and it’s entirely possible that by the time this article is posted they may have changed again. In the meantime, here is the current state of travel restrictions in the U.S. and an explanation of what they mean for business.
H, J, and L Visa Restrictions
March 31, 2021, marked the start of Presidential Proclamation 10052 (06/22/2020), which suspended the entry of certain H, J, and L nonimmigrants to the United States. In response to the labor market concerns due to the pandemic, this proclamation was a fairly blatant attempt to cut a number of employment-based visa programs to preserve jobs for US-based citizens.
Currently, H, J, and L nonimmigrants can now obtain visas and travel to the United States (as consular offices gradually resume regular visa processing), subject to the COVID-related restrictions discussed below.
COVID-19 Related U.S. Travel Restrictions
At present, a number of COVID-related U.S. travel restrictions still exist which prohibit travelers who have been based within certain countries within two weeks prior to entering the U.S.
President Biden Issued a New COVID-19 Travel Ban in January 2021
On January 21, 2021, President Biden signed Executive Order 13998, “Promoting COVID-19 Safety in Domestic and International Travel,” which directed several government agencies to examine current public health precautions for international travel and take appropriate regulatory action.
Proclamation 10143
Then, on January 25, the President issued Proclamation 10143, “Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.”
Which Countries are Subject to these U.S. Travel Restrictions?
President Biden’s U.S. travel restrictions suspend entry into the U.S. of noncitizens who were physically present in the Schengen Area [1], the United Kingdom, the Republic of Ireland, Brazil, and South Africa during the 14-day period leading up to their planned entry into the United States. This proclamation does not expire until it is terminated by the President.
U.S. Travel Restrictions Extended at Canada and Mexico Land Borders
On March 24, 2020, the Trump administration restricted travel to the U.S. from Canada and Mexico to all but “essential travelers.” Essential travelers include U.S. citizens and lawful permanent residents, individuals traveling for medical purposes, students, essential workers, individuals involved in lawful cross-border trade, members of the U.S. Armed Forces, and individuals engaged in official government travel. The travel restrictions for non-citizens entering the U.S. from Mexico or Canada have since been extended further until at least April 21, 2021.
While land and water borders between the U.S., Canada, and Mexico are essentially closed, it is still possible to fly. Those flying into the U.S. from either country must present a negative COVID-19 test in order to be admitted to the U.S.
US Travel Restrictions on China and Iran
Travelers from China and Iran have been subject to COVID-related travel restrictions since January 2020 (Proclamation 9984) and February 2020 (Proclamation 9992), respectively. Those restrictions were extended indefinitely by the Biden Administration’s Presidential Proclamation 10143.
Exceptions to the Current U.S. Travel Restrictions
Exceptions to the current restrictions, in the form of ‘national interest exceptions’ (NIEs) have existed since January 2020. Non-U.S. citizens/permanent residents can apply for an NIE if their travel was determined to be in the national interest. This includes medical professionals either treating COVID-19 patients or conducting research on the virus, as well as business professionals whose entry provided significant financial and/or job creation benefits to the United States.
Exceptions also included certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents. Students traveling on F-1 or M-1 visas were also automatically considered for NIEs.
US National Interest Exceptions Update – March 2021
On March 2, 2021, revisions to NIEs requirements meant they have become more difficult to obtain for those non-citizens traveling from the Schengen area, the UK, and the Republic of Ireland. Pursuant to a Department of State directive, NIEs will be considered for those travelers who seek to enter the U.S. to:
Offer vital support to critical infrastructure sectors;
Serve as academics, J-1 students, or journalists;
For purposes related to humanitarian travel, public health response, and national security.
Similar to before, F-1 and M-1 students need not apply for an NIE; they will be automatically considered for an NIE.
What do the Revised National Interest Exceptions Mean for Business?
Unfortunately, the broader categories of business travelers are now less likely to be approved for an NIE. It should be noted that the State Department has provided this specific guidance on NIE eligibility only for travelers from the Schengen Area, the UK, and Ireland. Those seeking entry to the U.S. from other countries subject to travel restrictions may still apply for NIEs, although it remains to be seen whether they will be considered under the new, more restrictive criteria.
Takeaways – What do the Current U.S. Travel Restrictions Mean for Business?
Over the past year, businesses in the United States that rely on foreign talent have felt the impact of the COVID-19 pandemic on many levels. Travel restrictions have tightened over the past few months due to the emergence of COVID-19 variants, making it more difficult than ever for individuals to come to the U.S. for business. Unless your business qualifies for an NIE, it can be extremely difficult to enter U.S. borders at the present time.
Fortunately, the end is in sight. From recent reports, sources in the Biden Administration have stated that travel restrictions may begin to ease by mid-May 2021, assuming vaccines become more widely available. Until then, it is recommended that non-U.S. citizens or permanent residents curtail any foreign travel unless they are eligible for an NIE or meet the standards for “essential travel” until the pandemic eases.
If you need more expert advice on U.S. immigration issues, get in touch with Marin Ritter. In the meantime, if the current travel restrictions are holding you back, you can still do business in the U.S. remotely from the UK.
[1] The Schengen Area includes 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, and Switzerland.
Disclaimer: PGC does not endorse any personal views or opinions of the author. All information here is for general informational purposes only and is not intended to be a substitute for professional and/or legal services.