U.S. Nonimmigrant Visa Ban Expires

Presidential Proclamation (PP)  10052  suspending entry to the U.S. of certain nonimmigrants in  J, H and L status  expired March 31, 2021. The Biden Administration has declined to  extend the ban.

PP 10052 was initially implemented  by the Trump Administration in June 2020 with the stated rationale of protecting U.S. workers from the economic downtown stemming from the pandemic. The ban was later successfully challenged  by the U.S. Chambers of Commerce and other associations,  with a federal court invalidating significant portions of the ban, but limiting  the ruling to members of the plaintiff organizations.

What to Expect

Expiration of  PP 10052 is welcome news to U.S. companies, hospitals, universities and small businesses seeking to employ high-skilled and temporary workers, as well as multinational corporations seeking  to leverage the expertise of employees from overseas affiliate offices. Nevertheless, significant challenges remain in bringing nonimmigrants to the U.S.

• The regional COVID-related travel bans stemming from PP 10143 remain in place for the Schengen Area, the United Kingdom, Ireland, South Africa, Brazil, Iran and China. With limited exceptions, foreign nationals who have been physically present in these regions at any point during the 14-day period prior to arrival in the U.S. are prohibited from entering the U.S.
• The Department of State may issue National Interest Exemptions (NIEs) for certain individuals traveling to the U.S. from the Schengen Area, the United Kingdom and Ireland, but qualifying for an exemption is very restrictive.  Exemptions are limited to individuals seeking to enter the U.S.  to provide vital support for critical infrastructure, the public heath response, national security or other humanitarian considerations.
• With the termination of the nonimmigrant visa ban, which also had associated guidance for exemptions, it is not clear how travelers from Brazil, China, Iran and South Africa may qualify for an NIE. Gibney is monitoring Department of State guidance on this matter.
• Visa appointments at U.S. consular posts are likely to remain difficult to obtain  for the foreseeable future.  Consular posts worldwide continue to be impacted by the pandemic with many local health-related restrictions still in place. This continues to limit the ability of consular posts to process  cases for qualifying individuals.  Additionally, consular posts are prioritizing immigrant visa appointments pursuant to the revocation of the immigrant visa ban (PP 10014). Finally, after a year of suspended and limited consular operations,  significant backlogs exist for scheduling nonimmigrant and immigrant visa appointments.
• As a reminder, pursuant to CDC guidance, all international travelers to the U.S. age  2 years and older, including U.S. citizens and permanent residents, are required to present proof of a negative COVID-19 test result or documentation of recovery from COVID-19.  At this time, proof of COVID-19 vaccination does not exempt international travelers from the testing requirement.

Looking Ahead

As the U.S. and the rest of the world begin to loosen pandemic-related restrictions, opportunities for international travel and mobility  will increase. However,  considerable patience will be required as consular posts continue to grapple with appointment  backlogs, local health mandates and restrictions, and limited resources.   The lifting of the visa category ban will not mean that previously impacted individuals will be able to secure visas to travel to the U.S. immediately, and the COVID-related regional travel restrictions will continue to limit admission the U.S. until affirmatively lifted.  It is very important to confer with legal counsel prior to making international travel plans.  For additional information, please contact your designated Gibney representative or email info@gibney.com.