What impact will the presidential election have on immigration? Will the new president terminate the Covid-19 presidential proclamations?

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On Saturday November 7, 2020 Joe Biden and Kamala Harris became the president elect and vice-president elect of the U.S. In 2020, president Trump signed multiple presidential proclamations related to the Covid-19 global pandemic & entry of foreign nationals to the U.S. Many of our clients are wondering if these proclamations will be terminated once the new administration takes over in January 2021.

Covid-19 Presidential Proclamations suspending entry to the U.S. of aliens who were present in certain countries 14 days prior to their entry to the U.S.

In 2020, President Trump signed multiple proclamations suspending entry into the U.S. of aliens who were physically present in several countries (please see the list below) within the 14 days of their entry to the U.S.:

  • China (signed in January 2020);
  • Iran (signed in February 2020);
  • Schengen Area countries (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland) and the UK and Ireland (signed in March 2020) ;
  • Brazil (signed in May 2020).

While there are certain exceptions to this proclamation (e.g. if you are a close relative of a U.S. citizen or a green card holder or if you are entering the U.S. on a C-1 or D visa), the exceptions are very narrow. Another exception our clients often use is that they argue that their entry is in the U.S. national interest (for example if you are an E-2 investor and you have a successful business in the U.S., you could seek an entry to the U.S. and argue that your entry is in the U.S. national interest). The Department of State provided further guidance for travelers from Schengen countries and the UK and Ireland regarding the National Interest Exception (Please see our blog post on this topic when you click here).

If your primary purpose is to visit your family, unfortunately you would not meet the requirement that your entry is in the U.S. national interest, and many of our clients who are in the U.S. on a non-immigrant visa have been unable to see their families for several months.

If you don’t qualify for any exception,  you may still be able to enter the U.S. with a valid visa/ESTA but you will need to spend 14 days in a country that is not on the list of restricted countries and then enter to the U.S.

Many of our clients who reside or are currently present in one of the countries that are on the list of restricted countries and that either do not qualify for any exception or had their request for a national interest exception denied are wondering if these travel bans will be lifted after the new president is inaugurated in January 2021.

Do the proclamations have an expiration date?

No. The proclamations state that they shall remain in effect until terminated by the President. The Secretary of Health and Human Services shall recommend that the President continue, modify, or terminate this proclamation as described in section 5 of Proclamation 9984, as amended.”

Will the proclamations be terminated after the new president is sworn in?

We think it may take some time until all the proclamations are terminated. It will most likely depend on how many Covid cases are in the particular countries and if the cases in a particular country are rising/declining etc.

Our hope would be that the new administration will revisit how many Covid cases are in each individual country from the list above and will terminate the proclamation(s) for individual countries accordingly. Another possibility would be to allow visitors to enter if they provide a negative test when they enter the U.S. and perhaps if they provide a second negative test within a few days of their entry to the U.S. Please note that the new administration has not commented on what they are planning to do with regards to this particular issue yet, and these are only our thoughts.

Please see our blog post on travelling to the U.S. from Europe during Corona Virus when you click here.

Please click here and here to read more about the National Interest Exception.

Presidential Proclamation suspending entry of aliens who present a risk to U.S. Labor market (H-1B, H-2B, L, and certain J visas)

In June 2020, president signed a proclamation that suspended entry to the U.S. for H-1B, H-2B, L-1, certain J visa applicants (and their spouses and children).

As explained in our video, the proclamation has a limited scope and the National Interest Exception was also extended  to the H-1B and L-1 employees.

The scope of this proclamation is limited as it only applies to a person who:

  • Was outside the U.S. as of June 24, 2020
  • Did not have a valid non-immigrant visa as of June 24, 2020
  • Did not have an official travel document that is valid as of June 24 (or issued after June 24, 2020 and the document permits the person to enter the U.S.).

Does the proclamation have an expiration date?

Yes. The proclamation expires on December 31, 2020 but can be further extended as necessary.

The new president should be inaugurated on January 20th, 2021. The new administration has not yet expressed whether this proclamation will be extended and the current administration also has not yet indicated whether they will extend the proclamation past the December 31, 2020.

We think that because of the proclamation’s limited scope, the proclamation could potentially be terminated as it only impacts people who were outside the U.S. on the effective date and did not have a visa, but it’s hard to predict at this point.

Please see the full text of the Presidential proclamation when you click here.

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