In the ten days since we reported on presidential Proclamation 10052, certain questions we and other immigration attorneys had about the proclamation have been clarified.  The proclamation established a ban on admission to the United States for people in the H, L, and J nonimmigrant visa categories for the rest of calendar year 2020.  We now have the following additional answers to the questions we asked on June 23:

If I am Canadian and do not require a U.S. visa, am I banned from entering?

No.  Canadian citizens are not subject to the ban.  The pretext for the proclamation is preventing entry of work-authorized foreign nationals who “present a risk to the U.S. labor market” during COVID-19 economic recovery.  Although Canadians are just as likely as other nationalities to work in the United States in H, L or J status, US Customs and Border Protection has confirmed they are not subject to the proclamation.  This is because the proclamation makes a valid visa a prerequisite for entry, and Canadians, unlike other nationalities, are exempt from the requirement to have visas in their passports prior to entering.

If I had a valid visa on June 24, 2020, in a different category, can I obtain an H, L or J visa at a US consular post, and return?

No.  When the proclamation was initially released, it was unclear whether someone who had a valid visa on June 24, 2020, in any category (e.g., F-1, B-1/B-2, O-1, etc.) could later apply for an H, L or J visa and enter the United States.  On June 29, the White House released an amended proclamation clarifying that its initial language was meant to be read strictly, not broadly or generously.  Only those who have H, L or J visas in their passports that were valid on June 24, 2020, may reenter the US after international travel.

If I was inside the United States in H, L or J status on June 24, 2020, and I travel abroad, can I renew my visa at a US consular post, and return?

Yes and No.  For entry, the proclamation requires that your visa be valid on June 24, 2020, and remain valid.  It is unclear if consulates will issue new H, L or J visas, but the proclamation does not explicitly prevent them from doing so.  You can obtain a new visa if a consulate grants you an appointment; however, you cannot reenter with that visa unless you meet one of the exceptions (see below).

If I am outside the United States, but my H, L or J visa has expired, can I renew my visa at a US consular post, and return?

Yes and No.  For entry, the proclamation requires that your visa be valid on June 24, 2020, and remain valid.  It is unclear if consulates will issue new H, L or J visas, but the proclamation does not explicitly prevent them from doing so.  You can obtain a new visa if a consulate grants you an appointment; however, you cannot reenter with that visa unless you meet one of the exceptions (see below).

How will the exceptions to the proclamation be determined and implemented?

Who qualifies for an exception to the entry ban is still the most obscure part of the proclamation.  As we reported initially, Proclamation 10052 establishes exceptions to the ban for those who are:

  • Critical to U.S. defense, law enforcement, diplomacy, or national security;
  • Involved in providing medical care to people who are hospitalized with COVID-19;
  • Involved in providing medical research at U.S. facilities to help combat COVID-19; or
  • Necessary to facilitate immediate and continued economic recovery.

The proclamation also grants “sole discretion” to the Departments of State and Homeland Security to apply these criteria as they see fit.  The hope and expectation have been that, eventually, after guidelines were established and distributed to the field by high-level cabinet officials, a certain level of discretion would extend to officers at U.S. embassies and consulates worldwide, as well as to CBP agents at US land and air ports of entry.  However, in practice, it appears these field officers will have no discretion whatsoever and each individual exception will require approval at the highest agency levels, thus assuring an extended review of weeks or months and little to no transparency in the process.

UPDATES as of July 1, 2020:  Please see our new piece, Entry Ban Update, for additional information that has become available about how the proclamation is being enforced for Canadians, visa renewals, and exceptions.

Continue Reading President Halts Certain Nonimmigrant Admissions and Extends Immigrant Admission Ban Through End of Year

We last wrote about international travel during COVID-19 in March, with a general overview and a separate article about travel in North America.  Since then, many changes have occurred (for example, those traveling to Canada and the United Kingdom must now quarantine for 14 days after arrival), while other elements of travel have remained the same (U.S. consulates around the world remain closed). As of June 18, 2020, countries are continuing to respond with travel warnings, travel restrictions, health screenings, quarantines, and extensions of immigration status for affected individuals.

General Resources

In addition to the country-specific information provided below, several general resources are also available to the public.  As the situation is still changing quickly, check the “Last Updated” date on websites to be sure you are reviewing the most up-to-date information:

Travel to and from the United States

As of June 18, 2020, the US has responded in a variety of ways:

  • Travel warnings. The US has issued a general Level 4 (Do not travel) warning related to COVID-19.  That warning, originally announced on March 31, remains in place.
  • In-bound travel restrictions based on time spent in Brazil, China and Iran, and most countries in Europe. Passengers who have transited through or been in these countries in the past 14 days are not allowed to enter the United States, unless they fall into one of the exceptions or are given advanced permission by US authorities.  Countries include Brazil, China, Iran, and most of Europe:  Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (excluding overseas territories outside of Europe).  There are exceptions for US citizens, lawful permanent residents, their spouses and children under 21, certain other family members, and certain others.
  • Extensions. To date, the US government has still not issued automatic or blanket extensions for people whose travel plans have been impacted by COVID-19, but extensions can be requested on a case-by-case basis.

Other Countries

Canada

  • Canada has severely restricted travel. Canadian citizens, permanent residents, and people with study permits, along with the families of these three categories of travelers, may still enter Canada.  There are also a few other specific categories who are allowed to enter, including those from the US whose travel is “non-optional and non-discretionary.”
  • Canada enforces a 14-day post-arrival quarantine requirement for nearly all travelers, including Canadian citizens. There are some exceptions to the quarantine requirement, but they are narrow.
  • The government of Canada is still relaxing documentation requirements for immigration applications, if documents are unavailable due to COVID-19.

Mexico

  • Any traveler entering Mexico by land must have an essential reason for travel, but authorities are interpreting “essential” broadly. There are no restrictions when entering by air.
  • Mexico does require arrivals by air to self-report if they have visited any infected countries, have had symptoms, or have been in contact with infected individuals.

United Kingdom

European Union

  • On June 11, 2020, the European Union recommended that member states remove restrictions on travel by June 15. As of June 12, most EU countries still had at least some restrictions on international movement and flights.
  • The Re-open EU Web Platform, listed under General Resources above, consolidates information from all EU countries.
  • The EU Commission’s Mobility and Transport website provides transport-specific details and links among EU countries.

If you have questions concerning foreign travel during the COVID-19 outbreak, please contact one of our attorneys.

We are pleased to announce that the Labor and Employment team at Hunton Andrews Kurth LLP has been recognized as practice leaders in Immigration and Labor and Employment Disputes (Including Collective Actions): Defense by The Legal 500. Eleven individual lawyers on HuntonAK’s Labor and Employment and Immigration Team also were acknowledged.

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The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.

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