Presidential COVID-19 Proclamations – Clearing Up the Confusion

Presidential COVID-19 Proclamations – Clearing Up the Confusion

US Visa and Entry Issues – How Do Trump’s Proclamations Effect You?

2020 can best be described as a roller coaster year in terms of US entry and visas. This post presents the Presidential proclamations the US President has signed since the COVID-19 crisis began and hopefully will clear up the confusion caused by the multiple proclamations and crucially, discuss the exceptions to allow those to be issued US visas or obtain clearance to travel to the US.

Early on in 2020, in response to the spread of COVID-19, Trump issued a Proclamation barring those entering the US from China and Iran then in March he issued two proclamations, the first barring those entering the US who were located in the Schengen Area and shortly thereafter, the President issued on to include the United Kingdom and Ireland on the list of countries where, if you’re located there, you cannot travel directly to the US. The Schengen Area proclamation is number 9993 and the UK and Ireland proclamation is number 9996. These proclamations do not have an expiry date and continue to be in place under the President’s discretion.

The key thing to know about the COVID-19 Proclamations is that they affect not the nationals of the countries listed but those who are physically located in each of these countries unless they fall under an exception which is discussed below.

Then, on April 22, 2020, Trump issued another separate Proclamation number 10014 barring the issuance of immigrant or permanent visas outside the US. Immigrant visas are visas that allow someone to enter the US as a Lawful Permanent Resident (aka “green card” holder). This proclamation is based on the “risk” of those outside the US (or “aliens”) present to the US labor market following the COVID-19 outbreak. As a shorthand, I refer to this proclamation as the economic COVID-19 proclamation as it is based on Trump’s response to supposedly protect the US job market in light of the economic downturn caused by the COVID-19 pandemic.

This proclamation was set to expire in 60 days which could be extended at the discretion of the President. After the 60 days on June 22, 2020, Trump extended the proclamation and issued a new proclamation, numbered 10052 which barred the issuance of the following nonimmigrant or temporary H-1B Professional Worker, H-2B Workers, J-1 Exchange, and L Intra-Company Transfer visas and the Dependent family members of those who apply for these visas at US embassies and consulates outside the US. The proclamation does not prevent the USCIS from approving these visa petition benefits within the United States.

The expiry of the economic COVID-19 proclamation is set to expire on December 31, 2020, and may be extended at the discretion of the President.

How have the Proclamations affected travel from the UK, Ireland, and the Schengen area?

In short, the President’s use of proclamations to bar people from entering the US is a blunt instrument that disrupts more than it solves and, while I don’t have any data yet, it is unlikely that they are doing anything to help the spread of COVID-19 in the US or the US economy. The US has done quite well with spreading COVID-19 virus on its own despite barring those from the countries where the virus was the worst. Those countries’ COVID-19 infection rates have decreased when over the course of the summer, the US infection rates have increased but this doesn’t help those who need to get into the US.

The Exceptions to the Proclamations

There are clearly defined exceptions for all proclamations for the following people:

  • US citizens
  • Lawful Permanent Residents (aka green card holders)
  • Spouses and children who are under the age of 21of US citizens or Lawful Permanent Residents (LPR).

Early on, there was a lot of confusion and fear as to how these exceptions would be implemented but in the nearly six months or so it is now well established that those who fall under these exceptions do not have to obtain any clearance or authorization prior to flying to the US. For example, a spouse of US citizen should carry their marriage certificate and, if they aren’t travelling with their spouse, a copy of their spouse’s US passport.

The COVID-19 proclamations also add parents or legal guardians of a US citizen or LPR who is under the age of 21 and a person who is the sibling of a US citizen or LPR and if both the US citizen and US citizen are under the age of 21.

From there are additional exceptions for:

  • Those who the US government has invited to the US for the purpose of stopping the virus,
  • Those who seek to enter the US as a C-1, D or C-1/D crewmember, and
  • other entrants such as those entering the US under diplomatic or NATO visas or those who are helping the Centers for Disease Control.

Our firm has also assisted clients with obtaining waivers to travel directly to the US on the basis they are receiving medical treatment in the US.

Finally, there is the basis that has developed over the summer with the help of US Customs and Border Protection and the US Department of State: the national interest exception.

In July and August, the US Department of State issued guidance on issuing waivers to allow persons who are barred travelling directly to the US or barred from having an immigrant or nonimmigrant visa.

How do you request a Proclamation waiver?

A proclamation waiver can be requested from a US embassy or consulate or from a US Customs and Border Protection Port of Entry. It is best to obtain legal advice as there are many factors involved with requesting a waiver because the process can depend upon for example if you hold a visa currently or if you need to apply for a visa as well as where you are located or where you plan to travel to the US.

The timing of the requests can vary and depend on the urgency of the travel. In assessing a proclamation but in our firm’s experience, it could take as quickly as hours to a week and a half from when the request is made. It is advisable to contact your US visa lawyer as early as possible to determine whether you will qualify for a waiver. The lawyer will need to know your full situation and timing requirements in order to provide specific advice on how to proceed.

Case Studies

Here is a sampling of the exceptions our firm has obtained on behalf of our clients since the Proclamations have been issued:

  • Assisting a family with obtaining clearance to travel from the UK who needed to bring a child to the US to continue cancer treatment.
  • Assisting a client who has been regularly receiving medical treatment for an on-going medical issue in the US.
  • Assisting many business clients who hold L-1 Transfer, E-1 Treaty Trader, and E-2 Treaty Investors to tend to their businesses in the US.
  • Assisting the director of a New York recruitment firm with traveling to the US from the UK to continue developing the business after he was stranded in the UK shortly after the issuance of the proclamation.
  • Assisting a Diversity Visa Lottery winner and her spouse who had been issued immigrant visas to enter the US to take up work in the bio-medical field.
  • Assisting with entering the US to provide essential training to US workers the energy sector.

The process to request a national interest waiver or travel clearance is constantly changing and our firm is working hard to ensure we have the most up-to-date information on the issuance of US visas and proclamation waivers. Please note that this posting is for informational purposes only and is not legal advice to be relied on. If you would like to speak to a US visa lawyer about travelling to the US or applying for a US visa, please email us at info@janiceflynnlaw.com or call our office from the UK +44(0)20 7092 6830, Ireland +353 (0)1 254 9317 or the US +1 (312) 361-0581.