On January 18, 2021, the Trump administration officially lifted widespread travel restrictions barring the entry of foreign national travelers physically present in the 26 countries of the European Schengen Area, the United Kingdom, Ireland, and Brazil within 14 days prior to entry. Notably, the order lifting the bans is set to take effect at 12:01 a.m. EST on Tuesday, January 26, 2021, after President Trump leaves office. As indicated in the order, the lifting of restrictions is set to coincide with the effective date of a recently issued order requiring all international passengers entering the United States to provide proof of a negative COVID-19 viral test taken within three days prior to their flights to the United States. Nevertheless, reports from President-elect Biden's transition team have indicated that the new administration may seek to immediately re-instate the travel bans in view of the worsening global COVID-19 situation. We caution employers to remain aware of the fluctuating situation and guidance during the transition.
The COVID-19 travel bans, in place since March 2020, have prohibited most foreign nationals from entering the United States if they have been physically present in the Schengen Area of Europe, the United Kingdom, Ireland or Brazil within 14 days of entry, with a few specified exceptions (e.g., workers pursuing employment in the U.S. national interest, such as healthcare workers). Later, U.S. Department of State guidance clarified that certain business travelers would be exempted from the ban on the basis of technical expertise or managerial skills. Detailed guidance on which travelers may qualify under exemptions has not been set forth, however, and adjudication of such requests by embassies abroad has been highly discretionary.
The new order does not impact existing bans barring the entry of individuals present in the People's Republic of China or Iran. Foreign nationals physically present in the People's Republic of China or Iran within the 14 days of sought-after travel to the United States will continue to be prohibited from entering. Individuals subject to the travel bans must contact their respective embassies to apply for a national interest exemption to be able to travel to the United States.
We continue to monitor changes in guidance given the upcoming change in presidential administrations as President-elect Biden enters office. If the new administration reinstates the bans, travelers from Europe, UK, Ireland, and Brazil will continue to be barred from directly traveling to the United States.
Finally, we note that U.S. embassies and consulates abroad continue to be largely closed for routine operations, and that the ban on new issuance of L-1 and H-1B visa stamps remains in effect (with certain exemptions), which will continue to complicate routine assignment of international personnel to the U.S. for employment purposes.
Originally Published by Littler Mendelson, January 2021
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