Gaining approval for a visa during the coronavirus pandemic has not been easy for businesses. At the beginning of March, the Biden administration made it more difficult. Attorneys and visa applicants are raising questions about whether the visa policy makes sense.
U.S. visa policy treats an international student on an F-1 visa and a treaty trader with a business in the United States on an E-1 visa differently, even though both would have to show a negative Covid-19 test result before flying to the United States. It makes sense to welcome international students to America under the health provisions, but why have the rules become stricter for people in other visa categories? Are there reasonable alternatives available to accommodate health concerns and legitimate travel?
According to the CDC (Centers for Disease Control and Prevention) guidelines, “All air passengers coming to the United States, including U.S. citizens, are required to have a negative Covid-19 test result or documentation of recovery from Covid-19 before boarding a flight to the United States.” That makes the State Department’s distinctions among the visa categories baffling.
If everyone needs to show a “negative Covid-19 test result or documentation of recovery from Covid-19” before they can board a plane to the United States, why are there different policies from one visa category to another?
“I try to see the logic but just can’t,” said Tammy Fox-Isicoff of Rifkin & Fox-Isicoff in an interview. “Simply put, it’s asinine.”
On March 11, 2020, the Trump administration issued presidential proclamation 9993, suspending and limiting the entry “of all aliens who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the United States.” The Schengen Area includes almost all European countries. A few days later, another proclamation extended similar restrictions to cover England, Scotland, Wales, Northern Ireland and the Republic of Ireland. Other proclamations covered China, Iran, South Africa and Brazil. There is a separate ban on the entry into the U.S. of visa holders (H-1B, L and others) that continues until at least March 31, 2021, and contains national interest exceptions.
The Trump administration ended the bans on entry for the Schengen Area, the United Kingdom and Ireland, Brazil, and South Africa on January 26, 2021. The Biden administration reinstated the ban after the inauguration, meaning it stayed in effect continuously, with a plan to reevaluate the worldwide Covid-19 travel restrictions regularly based on public health guidance.
The Trump administration’s travel proclamations included national interest exceptions (NIEs). After reinstating the ban, the Biden administration changed those national interest exceptions on March 2, 2021, which had the effect of disqualifying more individuals for visas.
Fox-Isicoff points to the case of her client. “Without notice, the Schengen consulates changed the amorphous and unknown criteria for the national interest exceptions to a Covid-19 ban,” she said. “Now investors, intracompany managers, essential workers and those extending prior visas are being refused.”
“Our client is on an E visa—he invested $300,000 and employs four U.S. workers. He was in the United States until a week ago on an L visa for intracompany transferees. The L visa expired and he went to Paris to get an E visa. The embassy found he qualified for the E visa but did not merit receiving one due to the tighter national interest exception criteria, so no visa was granted. This puts his $300,000 investment and the employment of four U.S. workers at risk. This is happening all over the Schengen Area.”
“We are trying to figure this out and really don’t get it,” said Fox-Isicoff. “But it is life-altering for U.S. businesses and financially devastating for investors and the U.S. workers these investors employ. Upon issuance of a visa, the applicant could quarantine [outside the Schengen Area] or comply with whatever Covid-19 precautions are required. This is what the actual proclamation requires.”
“The application of this new arbitrary, amorphous and mysterious national interest exceptions is arbitrary and capricious,” she said. “There is no logical reason for this given that visitors from other visa categories are coming from these same countries.”
“The current visa policy cannot be justified as stopping Covid-19,” said Fox-Isicoff. “We allow people who obtained visitor visas years ago to come to the United States, but people like my client who have lived here on an L visa for years and left recently are lower on the chain than a visitor who comes to America for a vacation after not being here for years.”
In response to questions, a State Department official told me on background:
“On March 2, 2021, the Secretary of State approved changes to the Department’s National Interest Exceptions (NIE) policy with regard to the travel restrictions that apply to the Schengen Area, United Kingdom, and Ireland under the President’s January 25, 2021 Presidential Proclamation. These changes add an exception for critical infrastructure travelers, maintain the exceptions for students, academics, and journalists, and remove the exception for certain business travelers and athletes.” (Emphasis added.)
“Effective immediately, travelers seeking to provide vital support for critical infrastructure in the United States may review information provided on travel.state.gov and contact the nearest embassy or consulate to see if they qualify under this most recent national interest determination. The following travelers subject to the travel restrictions covering those present in the Schengen Area, the United Kingdom, and Ireland within 14 days before attempted entry into the United States may qualify for NIEs if they are otherwise qualified for visas: travelers seeking to provide critical infrastructure support, academics, students, journalists, humanitarian travelers, travelers participating in public health response, and travelers whose travel is in the interest of U.S. national security.
“Technical experts and specialists, senior-level managers and executives, treaty-traders and investors, and professional athletes and their dependents no longer qualify for NIEs.
“The Secretary of State made this determination of travel in the national interest following discussions with the Principals Committee of the National Security Council. The Secretary’s view, consistent with the administration, is that these measures, prioritizing health and safety as we work to reduce the prevalence of Covid-19, are in the United States’ best long-term interests. The Secretary also believes that travel that will provide vital support for critical infrastructure continues to be in the national interest. The United States will look to reevaluate these restrictions as the science-based conditions allow.”
Attorneys are receiving similar responses from consulates in London, Paris, Frankfurt and elsewhere across Europe.
International students have automatically qualified for national interest exceptions, a positive development considering the significant decline in international student enrollment in the past year. “Students coming from Brazil, China, Iran, and South Africa have to go to another country for 14 days, or ask for a case-by-case waiver from the local consulate,” said Dan Berger of Curran, Berger & Kludt in an interview. “Some Brazilian student-athletes went to Mexico for 14 days, for example, to avoid the Brazil ban. Most students from China didn’t get here for the spring and are taking classes remotely in the middle of the night.”
“I’m not quite sure why some Ls and Es were taken off the blanket exemption for the UK/Ireland/Schengen ban,” he said. “Definitely pleased to see F-1 visas prioritized. I agree that if there is testing for everyone, why have a visa ban? We hope the Biden administration will let the Trump H-1B ban expire later this month, but these country restrictions are concerning. Quite a few faculty and researchers were unable to reach the United States for this spring semester because of the H-1B and country bans. If there are specific public health concerns about documentation of testing in particular countries or false negatives, those need to be clearly explained to the public and coupled with a welcoming message so that international investors and business people do not get discouraged from trying to come here.”
Litigation is being prepared to challenge the policies, according to attorney Greg Siskind.
“Our suit is challenging the legality of barring visas from being issued to people subject to these travel bans,” said Siskind. “The law allows the president to bar the entry of people, but visas are not covered in the statute. With these proclamations, they’re banning based on presence in a country and not based on nationality. So if someone wants to go to another country for 14 days and then enter the US, there shouldn’t be an issue. But the State Department is barring visas from being issued even if a person is willing to abide by the 14 days rule. We have sued and won on this issue in other cases, but our new suit will challenge this for all visa categories in all 35 affected countries. There will likely be other litigation challenging the way the administration has rolled out the national interest exemptions.”
The Trump administration did not attempt to find alternatives to outright bans of immigrants and temporary visa holders. The Biden administration withdrew the proclamation that suspended the entry of immigrants but has kept in place the proclamation that blocks many temporary visa holders. If health is the concern, in addition to proof of a negative test prior to boarding a U.S.-bound plane, individuals eligible for visas to invest, work and live in the U.S. would almost certainly be happy to quarantine upon arrival in America rather than being banned from the country.
“There are other options that would be consistent with public safety and less burdensome on international travel,” said Jeffrey Gorsky, senior counsel at Berry Appleman & Leiden and a former State Department attorney, in an interview. “But it looks like the current administration is placing a much higher priority on Covid than on immigration flexibility. At least I don’t sense that they have ulterior motives here, which the Trump restrictionists did in a number of their policies. There is hope things will change as soon as the virus comes more under control.”