State Department Addresses Some Entry Ban Exemptions

The issue

The State Department issued two statements today that address exemptions to several of the Trump Administration’s recent proclamations restricting immigrant and nonimmigrant entry to the United States. The agency answered some questions about the scope and availability of exemptions to the travel restrictions, though several important issues remain unresolved.

Exceptions from restrictions on travel from the Schengen Area, the United Kingdom and Ireland

In March of this year, the Trump Administration imposed a COVID-19 entry ban on travelers from the European Schengen Area, the United Kingdom and Ireland. Those bans will remain in effect until lifted by President Trump. Today, the State Department clarified that the following groups of foreign nationals may be able to enter the United States in spite of having been present in the Schengen Area, the United Kingdom or Ireland within 14 days of attempted entry to the United States:

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

Exceptions to immigrant and nonimmigrant visa bans

The State Department addressed exceptions to the immigrant and nonimmigrant entry bans that were issued in April and June of this year. The agency announced that exceptions may be available for the following applicants, in addition to the humanitarian, public health responses, and national security exceptions already set forth in the bans:

• Spouses and children of H, J, and L visa holders who are already exempted from or are not subject to the nonimmigrant proclamation. If the principal nonimmigrant is exempt from restrictions because he or she was present in the United States or held an H, L or restricted J visa on June 24, the effective date of the ban, his or her spouse and dependent children benefit from that exemption, according to the agency statement. In addition, the State Department indicates that, if a principal nonimmigrant is granted a discretionary exemption from the restrictions, the spouse and dependent children will receive the benefit of that exemption. The agency also states that it will continue to issue H, L, and J visa to dependents who qualify for their own exemption or where the principal applicant is in the United States.
• Certain H and J visa applicants traveling to work in support of a critical U.S. foreign policy objective (such as a COVID-19 response) and/or traveling at the request of the U.S. government. It is not clear whether this exemption is available to L visa applicants. 
• Child immigrant visa applicants in danger of aging out of eligibility by January 14, 2021 (two weeks after the immigrant visa proclamation expires). 

The State Department confirmed that Diversity Visa lottery selectees who did not receive an immigrant visa by April 23 are subject to the visa ban unless they qualify for an exemption.

No clarity yet on economic recovery or food supply chain exemptions, among others

The State Department did not address the eligibility criteria for several key exemptions from the entry bans. Guidance is still awaited on how nonimmigrants can qualify for discretionary waivers of the restrictions for foreign nationals whose entry would be in the U.S. national interest, including those who are necessary to facilitate the economic recovery of the United States, as well as those providing labor or services essential to the U.S. food supply chain. It is understood that the State Department is working with the Departments of Homeland Security and Labor to develop guidelines for those exemptions.

What this means for employers and foreign nationals

Today’s State Department announcements clarify elements of the travel bans and their exemptions, which could facilitate the travel of some foreign nationals affected by those bans. However, ongoing COVID-19 restrictions and the absence of guidance on many of the exemptions potentially beneficial to employers still impede travel for many.

Fragomen continues to monitor implementation of the ongoing travel bans and will provide updates as further guidance is issued.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.