Travel Ban Round Two

By Benjamin A. Nucci and Rebecca A. Winterscheidt

In response to the Omicron variant of COVID-19, the Biden Administration reinstated travel restrictions for certain foreign nationals through Presidential Proclamation 10315. This new measure is a reverse course of Presidential Proclamation 10294, which just weeks ago lifted travel restrictions. See our prior article here for more information.

Employers and employees – regardless of immigration status – should consider monitoring developments before undertaking any international travel to ensure their return to the U.S. is not disrupted.

Who is impacted?

Immigrants and nonimmigrants who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding entry or attempted entry into the U.S.

Does this apply to U.S. citizens or lawful permanent residents?

No. It also doesn’t apply to “nationals of the U.S.”

Are there any exceptions for noncitizens?

Yes. The travel restriction does not apply to the following noncitizens:

• Parents or legal guardians 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.
• Siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21; 
• A 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.
• Those traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus.
• Noncitizen traveling as a nonimmigrant pursuant to a C–1, D, or C–1/D nonimmigrant visa as a crewmember or any noncitizen otherwise traveling to the United States as air or sea crew.
• Those seeking entry into or transiting the United States pursuant to one of the following visas: A–1, A–2, C–2, C–3 (as a foreign government official or immediate family member of an official), E–1 (as an employee of TECRO or TECO or the employee’s immediate family members), G– 1, G–2, G–3, G–4, NATO–1 through NATO–4, or NATO–6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or those whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement.
• Members of the U.S. Armed Forces or who is a spouse or child of a member of the U.S. Armed Forces.
• Those whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee.
• Those whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

How long will this remain in place?

The restrictions became effective at 12:01 a.m. on November 29, 2021 and it will remain in effect until terminated by the President. The Secretary of Health and Human Services shall recommend whether the President should continue, modify, or terminate this proclamation.

Next steps

This latest proclamation is a timely reminder that COVID-19 continues to impact employers and their global operations. Restrictions and changes in travel can change with little to no notice. As observed with previous travel restrictions, this proclamation may impact nongovernmental entities – such as airlines – and the services they offer to return to the U.S. Although the latest proclamation does not apply to U.S. citizens or lawful permanent residents, it may impact the ability of those individuals to secure safe and prompt return transportation to the U.S. if commercial services are reduced in response. Therefore, employers and employees alike should continue to monitor developments from the government to ensure they are not adversely impacted when considering international travel.