As spring and summer approach and foreign nationals are planning to travel abroad, now is a great time to ensure that all immigration documents are in order and to be aware of the current travel restrictions.
COVID-19 Travel Bans and Travelling to Third Countries
The impact of COVID-19 is felt differently in each country, with various restrictions from mandatory quarantine to closed borders. Foreign nationals are encouraged to keep up to date on the continuously evolving restrictions before planning to travel. Additionally, there is an active Presidential Proclamation restricting entry for nonimmigrants who have visited certain countries during the 14-day period preceding their entry or attempted entry to the U.S. As of today, these countries include China, Iran, United Kingdom (England, Scotland, Wales, Northern Ireland), Republic of Ireland, Brazil, South Africa and the European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Lativa, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City).
Starting January 26, 2021, The Centers for Disease Control and Prevention (CDC) will require a COVID-19 test or proof of recovery for all air passengers entering the United States. The test must occur no more than three days before the flight departs. This order applies to U.S. Citizens and foreign travelers. This rule is expanding upon the policy that was implemented in late December, which requires travelers from Britain to show proof of the negative test result.
Additionally, when you come back to the United States there are many states with a mandatory 14-day quarantine. This is continuously changing, and we recommend checking the state’s COVID restrictions before flying back into the United States.
Presidential Proclamation Restricting H-1B, H-2B, L-1 and J-1 (and Dependents) from Entering the U.S.
Former President Trump signed a Presidential Proclamation in June 2020 that restricts the ability of nonimmigrant visa holders in H-1B, H-2B, L-1 and J-1 status from entering the U.S. This proclamation was extended through March 31, 2021. There are exceptions for this proclamation for individuals who:
- Are inside the U.S. at the time of the proclamation
- Have a valid nonimmigrant visa, advance parole or other U.S. travel document as of the date of this proclamation
- Are lawful permanent residents of the U.S.
- Are the spouse or child of a a U.S. Citizen
- Are seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain
A recent court decision also provides exceptions for employees of companies who are members of U.S. Chamber of Commerce, the National Retail Federation, Technet and Intrax.
If you or your employees are any of these statuses and plan to travel, please reach out to your designated Meltzer Hellrung attorney to ensure you will be able to re-enter.
Eligibility for Visas and Exceptions
In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.
Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S. It is possible that it may take months to obtain an appointment due to COVID-19.
It is also important that the visa stamp be valid for the correct visa category. For example, if an individual changed from F-1 to H-1B on October 1 and has not yet received a new visa stamp, that person will need a new H-1B visa stamp to re-enter the country.
Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays and COVID-19. Each U.S. Consulate lists its holiday closures on its website, and estimated visa appointment and processing wait times can be found on the U.S. Department of State’s website. There are many U.S. consulates which are still closed, which has caused a backlog. Due to the backlog, obtaining an appointment for a visa at a consulate is taking many months. There are some consulates that are reopening but it will likely take many months to reschedule cancelled appointments from earlier this year. When traveling abroad, please plan for additional time for visa stamping appointments.
Dropbox visa stamping remains available, and eligibility has been expanded to individuals whose visas have expired in the last 24 months rather than the last 12. This expansion is in effect until March 31, 2021.
If you plan to travel to the U.S. consulate in your home country, and you are prohibited from entering the U.S there are emergency appointments available which may allow you to enter the U.S. The requirements for an emergency appointment vary among the consulates. Usually, a business necessity is considered an emergency since a company may lose money by not having an employee enter and work in the U.S. With the global pandemic, even emergency visa appointments are delayed and in some cases difficult to obtain. Please consult a Meltzer Hellrung attorney before leaving the United States to ensure an emergency appointment can be granted.
Foreign nationals who are coming to the U.S. from the list of restricted countries can enter the U.S. if they work in defense, law enforcement, diplomacy, national security, medical field, and medical research related to COVID-19.
Citizens of Canada generally do not need a visa stamp, but there are travelling restrictions to Canada due to COVID-19.
Pending Cases with USCIS
Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.
Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S., obtain a visa stamp, and re-enter in order to “activate” the new approval.
Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.
Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay, however, most countries are exempt from this requirement.
Re-entering the United States
When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:
- Current passport
- Current I-797 approval notice
- Two most recent paychecks or signed employment verification letter confirming current position, wage, etc.
Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:
- What is the name of your employer?
- What is your job title?
- Where do you work?
- How long do you expect to stay in the United States?
Students on M-1 or F-1 status should hand carry the following document:
- Current passport
- Student visa
- Form I-20
Any student that is admitted but receives a Form I-515A, “Notice to Student or Exchange Visitor” from the CBP officer should immediately contact their school’s Designated School Official (“DSO”) for assistance.
Upon returning to the U.S., all foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency, please contact us immediately for advice on correcting the mistake.
Individuals who do not have a valid visa stamps should not plan any international travel without first contacting your designated Meltzer Hellrung attorney