Takeaways:

  • The Biden Administration has established 2019 novel coronavirus (“COVID-19”) travel restrictions on foreign nationals who were in:  The Republic of Botswana (“Botswana”); the Kingdom of Eswatini (“Swaziland”); the Kingdom of Lesotho (“Lesotho”); the Republic of Malawi (“Malawi”); the Republic of Mozambique (“Mozambique”); the Republic of Namibia (“Namibia”); the Republic of South Africa (“South Africa”); and the Republic of Zimbabwe (“Zimbabwe”).
  • The format and structure of the policy are nearly identical to the travel restrictions that were rescinded on November 8, 2021.
  • Noncitizens who have been in these countries during the fourteen (14) days prior to seeking to travel to the United States are barred from admission, unless eligible for one of the Proclamation’s blanket exemptions or granted an exception pursuant to Sec. 2 (a)(xii).
  • The National Interest Exception (NIE) process, rendered void by the November 8, 2021 travel restriction policy rescission, rides again.

Background:

Geographic travel restrictions were rescinded on November 8, 2021, in favor of a vaccination-based approach to the COVID-19 Pandemic (“Pandemic”). Under this vaccination-based policy, whether a foreign national (referred to by the Biden Administration and hereinafter as “noncitizen”) is vaccinated or not is the primary determination of admissibility on COVID-19 health grounds.

This is still the policy for much of the world’s noncitizens, but the Administration established new geographic travel restrictions for some countries in Africa, effective 12:01 a.m. eastern standard time on November 29, 2021.

This new travel restrictions policy is very similar to prior travel restrictions:

This policy change affects Botswana, Swaziland, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe (“Restricted Countries”), and noncitizens from Restricted Countries will be generally barred from traveling to the United States.  There are blanket exemptions to this geographic travel restriction policy; they are listed in Section 2. Scope of Suspension and Limitation on Entry. Applying Green and Spiegel’s experience with the travel restrictions that were rescinded on November 8, 2021, we expect to see these exemptions most commonly employed to travel to the United States:

(i)  any lawful permanent resident of the United States;

(ii)  any noncitizen national of the United States;

(iii)  any noncitizen who is the spouse of a U.S. citizen or lawful permanent resident;

(iv)  any noncitizen who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;

(v)  any noncitizen who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21; [or]

(vi)  Any noncitizen who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications.

Additionally, Section 2(a)(vii) through (xi), dealing with government affairs and crewmen, are available to qualified noncitizens.  Finally, there is a Section 2(a)(xii) National Interest Exception ground in this new travel restriction that is identical to that which was in the geographic-based travel restrictions that were rescinded on November 8, 2021:

…any noncitizen or group of noncitizens whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

The U.S. embassies and consulates in the Restricted Countries have the authority to grant National Interest Exceptions (NIE), pursuant to Section 2(a)(xii), but we won’t know the process until their local policies and procedures are published.

Among the challenges of navigating the travel restrictions over the last two years is that the U.S. embassies and consulates have been left largely to themselves in crafting NIE application policies and in adjudicating the requests. Those local policies have been in a constant state of change and keeping on top of the changes has been challenging. It is likely that the same will prove true with the reinstatement of geographic- based travel restrictions.

Conclusion:

As Green and Spiegel noted when the travel restrictions were revoked, one of the features of Executive Orders, like this new travel restriction policy, is that they come into being by fiat and can be terminated in a like manner.  That geographic travel restrictions were abandoned in favor of vaccination-based vetting and then reinstated for African countries in the same month is a testimony to the adaptability of executive orders as policy and procedure and to the fluid nature of public health emergencies.  For the time being, noncitizens who have been in the Restricted Countries in the fourteen days prior to seeking to travel to the United States will likely be ineligible to do so.

Green and Spiegel, An Immigration Law Firm with Six Decades of Experience:

Green and Spiegel is monitoring this situation closely and will continue to update our blog and provide E-Alerts to advise on the latest developments. As always, we strongly encourage you to reach out to our office if you have any questions regarding if or how these changes impact you, your business, and your family. Our office number is (215)395-8959, we can be reached via web.

DISCLAIMER: Please note, nothing posted here is legal advice, nor does reading anything here or communicating with the writer on or through social media form an attorney/client relationship. Choosing an attorney is a serious matter and should not be based solely or primarily on advertising or any other public communication of an attorney or law firm.

Author

  • David Spaulding is a general immigration law practitioner and Green and Spiegel’s Compliance and Regulatory Practice Counsel.

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