Seyfarth Synopsis: Within the last few days, the Trump Administration has expanded an existing travel ban and initiated a new one related to the Coronavirus; similarly other countries have added entry restrictions to try to stem the spread of the virus.
Say hello to "Travel Ban 4.0". In previous communications1, we provided guidance on the divided Supreme Court 5-4 ruling, upholding the "Travel Ban 3.0" on June 26, 2019. Last week, six (6) additional countries were added to the existing list of those affected by the Travel Ban. In the newest iteration of the Travel Ban, the limitations are focused on immigrants only. In fact, nonimmigrants were excluded in the Proclamation, meaning foreign students in F-1 status and foreign workers holding other visas such as H-1B, L-1 and E, should not be directly affected.
Employers with employees from the six new countries should review all travel-related risks to determine if the restrictions will have any impact on the business. In limited instances, it could be important to understand the specific visa and entry permissions for each country as it relates to their employees. Universities should continue to provide updates to the faculty, and continue to provide assistance to the affected population.
Who Is and Who Is Not Affected by the Ban
Which countries are affected?
The original travel ban cited the Trump Administration's concerns that certain countries lack capacity in "respect to their identity-management and information-sharing capabilities, protocols, and practices"2. The new Travel Ban now affects nationals of a total of thirteen countries (Eritrea, Iran, Libya, Kyrgyzstan, Myanmar (Burma), Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen) mostly due to the countries' non-compliance with the identity verification and information-sharing regulations that are outlined in the Proclamation. Pursuant to Executive Order 13780, the Department of Homeland Security (DHS) "established certain identity-management, information sharing, national security, and public safety risk criteria all foreign governments are expected to adhere to in order to facilitate accurate and fair admissibility decisions under the Immigration and Nationality Act." DHS spoke about the Proclamation and stated "[t]his enhanced review process raises the bar for global security by requiring nations to meet the Department's stronger security standards and by making it clear to countries what they must do to meet those standards. The updated criteria enhance our screening and vetting capabilities and allow DHS to better identify terrorists and criminals attempting to enter the United States." DHS stated that the review process allowed the President to customize the actions taken by the U.S. government and in fact allowed for less stringent mandates in Travel Ban 4.0 as compared to 3.0.
What is the scope of the current Travel Ban?
The Travel Ban only applies to specifics individuals from the above-mentioned countries who:
- Are outside of the U.S.;
- Do not have a visa that was valid as of the applicable effective date (either September 24, 2017 or October 18, 2017); and
- Do not have a waiver or other travel document.
In the latest Proclamation, President Trump notes that he has "decided not to impose any nonimmigrant visa restrictions for the newly identified countries, which substantially reduces the number of people affected by the proposed restrictions." This is somewhat puzzling as the immigrant visa security review process is more thorough than the nonimmigrant visa process. This difference diverges from the prior ban as it affected both types of visas.
The Cheat Sheet (Newly added countries in bold):
Nonimmigrant Visas affected by the Ban
Immigrant Visas (including Diversity Visas) affected by the Ban.
|Eritrea||All immigrants except Special Immigrants whose eligibility is based on having provided assistance to the United States Government|
|Iran||All nonimmigrant visas except F, M, and J visas, with enhanced screening||All immigrants|
|Kyrgyzstan||All immigrants are banned except Special Immigrants whose eligibility is based on having provided assistance to the United States Government|
|Libya||All B-1/B-2 tourist or business visas; Entry under other types of nonimmigrant visas is not suspended||All immigrants|
|Myanmar (Burma)||All immigrants are banned, except Special Immigrants whose eligibility is based on having provided assistance to the United States Government|
|Nigeria||All immigrants are banned, except Special Immigrants whose eligibility is based on having provided assistance to the United States Government|
|North Korea||All nonimmigrant visas||All immigrants|
|Somalia||Enhanced screening of all nonimmigrants||All immigrants|
|Sudan||All immigrants under the Diversity Lottery Program|
|Syria||All nonimmigrant visas||All immigrants|
|Tanzania||All immigrants under the Diversity Lottery Program|
|Venezuela||All B-1, B-2 or B-1/B-2 visas of any kind for officials (and their immediate family members) of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People's Power Ministry of Foreign Affairs.|
|Yemen||No B-1/B-2 tourist or business visas; Entry under other types of nonimmigrant visas is not suspended||All immigrants|
Are there exceptions?
In addition to exceptions for any national who was in the U.S., and any national who had a visa on the effective date of the Proclamation (regardless of immigration status), the following are exempt from the Travel Ban:
- Permanent residents (e.g. green card holders);
- Dual nationals traveling on a passport from a country that is not affected by the Travel Ban;
- Diplomats (holding NATA, C-2/UN , G-1, G-2, G-3, or G-4 visas);
- Individuals traveling on advance parole, transportation letters, or boarding "foils" valid on or after the applicable effective date;
- Refugees who are already in the U.S.:
- Asylees granted asylum by the U.S.; and
- Individuals granted withholding, advance parole or protection based on the Convention Against Torture.
Are There Any Waivers?
Yes, there are waivers to the Travel Ban. A waiver is permission to obtain a U.S. visa, even though the Travel Ban renders an individual ineligible to obtain the visa. There are certain exceptions available for people who can prove the following to US State Department Consular Officers or a Customs and Border Protection (CBP) officials satisfaction that:
- They will suffer "undue hardship" if denied entry;
- Their entry would not pose a threat to the national security or public safety of the United States; and
- Their entry would be in the national interest.
What about Foreign Students?
While the Supreme Court decision granted exceptions for student visas issued to nationals of Iran, we predicted that the road ahead would be difficult for these students. This has been the case as many individuals have been denied entry, even with valid student visas. Again, while the latest Travel Ban does NOT include students, as it is focused solely on immigrant visas, students from all affected countries should expect additional scrutiny at the border as well as at U.S. consular posts when applying for visa stamps.
The Travel Ban saga continues to be complicated. We expect the Trump Administration to continue to add additional countries and/or restrictions that expands the current Proclamation. Further reviews will be undertaken by DHS in conjunction with other agencies, in an attempt to reevaluate the current state and methodologies used in issuing the Proclamation. In the interim any travel should be carefully considered.
Coronavirus Travel Restrictions
In addition to the Travel Ban expansion, Coronavirus travel restrictions have been implemented by many countries worldwide. With respect to travel to the U.S., DHS issued new travel restrictions for flights that carry passengers who have recently been in mainland China. Starting Sunday, February 2nd at 5 pm EST, entry to the U.S. has been suspended for any immigrants or nonimmigrants who were physically present within mainland China (e.g. excluding the Special Administrative Regions of Hong Kong and Macau) during the 14-day period preceding their entry or attempted entry into the U.S., subject to the following travelers excluded from the ban:
- Permanent residents (e.g. green card holders);
- Spouses of U.S. citizens or permanent residents;
- Parents or legal guardians of U.S. citizens or permanent residents, provided that the U.S. citizen or permanent resident is unmarried and under the age of 21;
- Siblings of U.S. citizens or permanent residents, provided that both are unmarried and under the age of 21;
- Children, foster children, or wards of U.S. citizens or permanent residents, or prospective adoptees seeking to enter the U.S. pursuant to the IR-4 or IH-4 visa classifications;
- Those coming to the U.S. by invitation of the U.S. government for a purpose related to containment or mitigation of the virus;
- Individuals traveling as crewmembers pursuant to C or D nonimmigrant status, or otherwise traveling to the U.S. as air or sea crew;
- Individuals traveling as foreign government officials or their immediate family (e.g. A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa);
- Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
- Individuals whose entry would further advance U.S. law enforcement objectives; or,
- Individuals whose entry would be in the national interest.
In addition, all flights coming to the U.S. carrying persons that were in mainland China within 14 days of their arrival to the U.S. must land at one of twenty designated airports where the Center for Disease Control (CDC) will perform enhanced health screenings on the passengers of these flights upon arrival. These restrictions will remain in effect until cancelled or modified by DHS through a subsequent notice in the Federal Register.
Currently, the twenty designated airports include the following:
- Los Angeles International
- John F. Kennedy International
- O'Hare International
- San Francisco International
- Atlanta's Hartsfield-Jackson
- Anchorage Ted Stevens International
- Boston Logan International
- Dallas-Fort Worth International
- Detroit Metropolitan
- El Paso International
- Honolulu International
- Houston George Bush International
- Miami International
- Minneapolis-St. Paul International
- Newark Liberty International
- Philadelphia International
- Puerto Rico's San Juan International
- San Diego International
- Seattle-Tacoma International
- Washington Dulles International
This list of airports may be modified by the DHS Secretary, in consultation with the Secretaries of Transportation and Health and Human Services.
Given the uncertainty and fluidity of this situation, it is recommended to avoid travel to mainland China where possible.
Please find below a few specific examples that may help to coordinate international travel in these jurisdictions and provide information about impact on immigration processes.
- Hong Kong closed the border for residents of Hubei and anyone who has visited Hubei in the last 14 days. Additionally, Hong Kong limits travel between Hong Kong and mainland China. This limitation includes reducing the number of flights to and from mainland China, and suspending the MTR's intercity services. West Kowloon station, which serves the Guangzhou-Shenzhen-Hong Kong Express Rail Link, and land crossings with mainland China are also closed, except the bridges to Zhuhai and Macau, the bridge to Shenzhen, and the airport remain open.
- As of February 2, 2020 all new visitors with recent travel history to mainland China will not be allowed to enter Singapore, and Chinese passport holders whose passports were issued in Hubei, will not be allowed entry into Singapore. While Singapore citizens, permanent residents and long-term pass holders who have visited Hubei in the last 14 days, as well as Chinese passport holders with passports issued in Hubei, may still enter but they will be quarantined.
- The Ministry of Manpower in Singapore will reject all new work pass applications for foreign nationals from mainland China until further notice.
- Taiwan closed the border for Chinese visitors from the Hubei Province. Even Chinese citizens who already hold an entry permit may not enter Taiwan. Taiwanese, non-mainland Chinese, and other foreign passport holders traveling from China are currently still allowed to enter Taiwan; they must conduct self-health management for 14 days.
- Since February 1, 2020, Australia has banned entry of all travelers arriving from mainland China. Exceptions apply to citizens and permanent residents of Australia and their immediate family members, however, they will be required to self-isolate for 14 days from the time they left mainland China.
- New Zealand follows the same policy; all foreign nationals who have departed from or transited through mainland China since February 2, 2020 are not allowed entry. New Zealand citizens, permanent residents and their immediate family members may enter New Zealand, but they must also self-isolate for the first 14 days of arrival.
- All flights between China and Vietnam have been cancelled; there may still be limited flights from and to Hong Kong and Taiwan.
- Vietnamese consular posts in mainland China and Hong Kong have stopped issuing visas (tourist or business) or accepting visa applications. This applies to all applicants, not only Chinese citizens.
- The Philippines close their border for all nationalities, except Filipino citizens and holders of Permanent Resident Visa issued by the Philippine Government, directly coming from China and its Special Administrative Regions as of February 2, 2020. This also applies to travelers who had visited China and its Special Administrative Region during the past 14 days preceding arrival in the Philippines. Filipino citizens and holders of Permanent Resident Visa face a mandatory 14-day quarantine. The Philippines also impose a temporary ban on Filipinos travelling to China and its Special Administrative Regions.
- South Korea does not allow entry for all foreign nationals who have stayed in or visited Hubei as of February 4, 2020. Chinese nationals who have visited Hubei in the last 14 days will not be allowed entry on the visa waiver program.
- The following countries also impose travel restrictions by either suspending issuance of visas, denial of entry or even closing the borders to China to all traffic: India, Indonesia, Macao, Japan, Malaysia, UAE, Kazakhstan, Sri Lanka, Russia, Mongolia and Nepal.
1 We have also written previously about the January 27, 2017 Executive Order, (EO 13769) (and the related February, 2017 temporary restraining order), the second, March 6, 2017 Executive Order, (EO 13780) ,as well as the third September 24, 2017 Presidential Proclamation 9645, or Travel Ban 3.0 entitled Enhancing Vetting Capabilities and Processes For Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. We followed along as federal judges in Hawaii and Maryland issued orders that blockedmajor portions of President Trump's September 24, 2017 Presidential Proclamation. We also blogged about the Supreme Court's previous ruling that partially enforced the Travel Ban by staying the preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. These injunctions had partially blocked Travel Ban 3.0 for those individuals who could demonstrate they had a bona fide relationship with a person or entity in the United States. We then chronicled the Trump Administration as they amended the Presidential Proclamation on April 10, 2018 which removed restrictions imposed on nationals of Chad, citing the country's improvements to security. Finally, we reported on the June 26, 2018 Supreme Court ruling upholding the Travel Ban's latest iteration on July 10, 2018.
2 See the Proclamation at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/
3 See the article at https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.