Brazil Is Added To COVID-19 Travel Ban List, Restrictions On Temporary Visas Likely

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On May 24, President Trump amended his “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus” by adding the Republic of Brazil to the list of countries whose nationals and visitors are barred from entering the United States during the COVID-19 pandemic.

Brazil reportedly has the second-highest number of confirmed coronavirus cases after the United States.The new restrictions were initially slated to take effect May 28, but that date was revised, and the restrictions took effect May 26 at 11:59 pm ET.

Whom does the amendment affect?

The amendment applies to foreign nationals who have traveled within the Republic of Brazil in the 14 days preceding the date of their requested entry to the United States.

Similar restrictions already apply to foreign nationals traveling from the People’s Republic of China (excluding the Special Administrative Regions of Hong Kong and Macau), the Islamic Republic of Iran, the Schengen Area (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), the United Kingdom (excluding overseas territories outside of Europe), and the Republic of Ireland.

Are there any exceptions to the travel ban?

The travel ban does not apply to the following:

  • Any lawful permanent resident of the United States.

  • Any foreign national who is the spouse of a U.S. citizen or lawful permanent resident.

  • Any foreign national who is the parent or legal guardian 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.

  • Any foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21.

  • Any foreign national who is the 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.

  • Any foreign national traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus.

  • Any foreign national traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any foreign national otherwise traveling to the United States as air or sea crew.

  • Any foreign national

    • 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

    • whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement.

  • Any foreign national who is a member of the U.S. Armed Forces and any foreign national who is a spouse or child of a member of the U.S. Armed Forces.

  • Any foreign national whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the Director of the Centers for Disease Control and Prevention or his designee.

  • Any foreign national whose entry would advance important U.S. 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.

  • Any foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

Refugees and those seeking asylum

The purpose of the travel ban is not to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Enforcement

The travel ban is enforced by the Secretary of State, in consultation with the Secretary of Homeland Security.

Additional immigration restrictions are likely

We previously reported on a proclamation issued on April 22, which required within 30 days that the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, review nonimmigrant programs and provide the administration with recommendations on other measures appropriate to stimulate the economy and ensure the prioritization, hiring, and employment of U.S. workers. It has been reported that the DHS and DOL provided separate recommendations to the administration on May 22.

Earlier this month, Republican Sens. Tom Cotton (Ark.), Ted Cruz (Texas), Charles Grassley (Iowa), and John Hawley (Mo.), co-signed a letter to President Trump asking him to suspend all new nonimmigrant work visas from 60 days to one year, or until unemployment has returned to “normal levels.” The categories mentioned included H-2B visas for nonagricultural seasonal workers, H-1B visas for specialty occupation workers, and the Optional Practical Training Program used by foreign students after graduation.

In addition, a number of states and federal agencies have provided their recommendations to the Administration. To date, no agency reports have been made public.

Although we cannot predict with certainty what these restrictions will look like or the duration of the recommended restrictions, a recent letter from the U.S. Chamber of Commerce indicates that employers can expect modifications to the following temporary visa programs:

  • H-1B Program (specialty occupation workers)

  • H-2B Program (non-agricultural workers only)

  • L-1 (intracompany manager/specialized knowledge workers for multi-national companies)

  • Optional Practical Training (used by foreign students who graduate from U.S. institutions)

In addition to the Chamber of Commerce, multiple business stakeholder organizations have provided their recommendations to the Administration, arguing that the temporary work visa programs are a key component of the economic recovery. The Chamber of Commerce has provided data indicating that the unemployment rate for workers employed in computer occupations -- where U.S. workers have historically been supplemented with H-1B workers -- is actually lower now than it was in January. Various technology employers have also warned that a categorical ban on temporary visa programs may substantially affect these employers’ ability to recover from losses that occurred during the pandemic.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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