Travel Ban
David B. Raft, Senior Supervising Attorney
Over the past 150 years, the United States considered and implemented numerous bans on the ability for individuals or certain groups of individuals to be able to travel to the United States. These “travel bans” have been plentiful. Most are long forgotten in the annals of history, but some, such as the Chinese Exclusion Act of 1882, do stand out. From the perspective of the Administration in power at the time, they felt there were legitimate reasons for such travel bans. From the lens of a historian, many seem unjustified and outright racist in nature today. Over the past four years, the country has seen more bans, and litigation filed against such bans than any time in the past 100 years.
The first and most widely known and contested travel ban established shortly after President Trump came into office is Executive Order 13769, entitled Protecting The Nation from Foreign Terrorist Entry into the United States, became known as the “Muslim Travel Ban” and was heavily contested both in the media and in the courts, ultimately upheld at the Supreme Court. This travel ban has since been reversed by a subsequent Executive Order published by President Biden on his first day in office.
In 2020, the United States saw President Trump sign Presidential Proclamations banning international travel to the United States in response to the coronavirus. Seven Presidential Proclamations suspending entry to the United States were issued within the year, albeit the scope of five of these “travel bans” were directly related to attempts to limit the spread of the novel coronavirus, COVID-19, whereas the other two were issued for very different reasons. Initially, the Presidential Proclamations suspended travel to the United States and were limited in scope to individuals that had been physically present within a 14-day period immediately preceding the effective date of said Proclamations. The first Proclamation impacted individuals who were physically present in China, Hong Kong or Macau and while it was signed on January 31, 2020, it went into effect on February 2, 2020. Additional Presidential Proclamations eventually expanded the travel bans to include individuals seeking admission to the United States from Iran (2/29/2020), all 26 countries that make up the Schengen Area (3/11/2020), the United Kingdom and Ireland (3/14/2020), and Brazil (5/24/2020). As stated, these travel bans were in response to the worldwide pandemic caused by the COVID-19 coronavirus but did not impact US citizens or lawful permanent residents returning from these countries.
Despite the suspension of travel from these countries, travelers could still ultimately seek admission to the United States if they traveled to a country not subject to one of these travel bans. This exemption to the Presidential Proclamation existed provided that the traveler did not seek entry to the United States within 14 days from when they had last been physically present in one of the countries subject to the travel ban. As an example of this, a traveler from the United Kingdom could potentially travel to Mexico, remain in country for 14 days, and then seek admission to the United States. Careful research would need to be made as to whether or not the intermediate country may have instituted its own COVID-19 travel ban protocols in response to the worldwide pandemic, and then further investigation thereafter to determine if that country was added to the list of countries for which the United States had banned travel.
Furthermore, in agreement with Canada and Mexico, the United States banned the entry of visitors seeking admission for nonessential reasons (eg tourism). These bans were limited in scope however, to only individuals seeking admission at land border Ports of Entry. Individuals flying to the United States were not subject to the travel ban.
The two remaining Presidential Proclamations impacted individuals that President Trump felt would impact the labor market during the economic recovery period following the COVID-19 pandemic. The initial Proclamation, signed on April 22 and effective as of April 24, prohibited certain immigrants from seeking admission to the United States. Impacted individuals were those who had either been issued an immigrant visa, which would qualify their admission to the United States as a permanent resident, or individuals waiting to be scheduled for their immigrant visa interview. The final Presidential Proclamation expanded the suspension of entry to individuals seeking H-1B, J-1 or L-1 visa issuance or admission as nonimmigrants. This travel ban was signed on June 22, 2020 and was effective as of June 24, 2020. This final Presidential Proclamation was limited in scope however, so individuals who held H-1B, L-1 or J-1 status and who were physically present in the United States at the time President Trump signed the Proclamation were not impacted by it. Additional litigation lessened the impact of the Proclamation as well. While this travel ban was set to expire on December 31, 2020 it was extended through to and including March 31, 2021 and remains in effect at this time.
It should be noted that while these travel bans prohibit the entry of individuals from these impacted countries and classes of foreign nationals, consideration was made for the basis for certain national interest exceptions – primarily focused on travelers seeking admission to the United States related to humanitarian travel, public health response and national security. Application for the national interest exception needed to be submitted to the local United States Embassy or Consular Post for consideration. Other exemptions exist as well for family members of U.S. citizens or permanent residents, including spouses, children (unmarried, and under the age of 21), parents of US citizen or permanent resident children (unmarried and under the age of 21) and siblings (again, provided that the other sibling is a U.S. citizen or permanent resident and unmarried and under the age of 21).
In one of his final acts as President, Donald Trump lifted several of the travel bans – specifically, on January 18, 2021, the Trump administration officially lifted the travel bans barring the entry of foreign national travelers physically present in the 26 countries of the European Schengen Area, the United Kingdom, Ireland, and Brazil within 14 days prior to entry. This did not impact existing bans barring the entry of individuals present in the People’s Republic of China or Iran. Furthermore, this act would only take effect as of January 26, 2021, however, it is notable that President Biden just reissued that travel ban as part of his Administration’s response to the coronavirus pandemic.
Finally, in the latest action taken on these travel bans, President Biden issued an Executive Order on January 21, 2021 entitled Promoting COVID-19 Safety in Domestic and International Travel which provides individuals with the ability to travel to the United States from any foreign country, provided that the individual produces a recent negative COVID-19 test prior to entry, and will comply with any applicable CDC guidelines with respect to international travel, including recommended periods of self-quarantine or self-isolation after entry to the United States. While this eases the ability for individuals to travel internationally, it does not lift the previous travel bans.
Please contact Global Immigration Partners at inquiries@gip-us.com for any questions related to this article.