On April 30, 2021, President Biden issued a Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019, which bars entry to United States for foreign national travelers who were physically present in India during the 14-day period preceding their request for admission. The Proclamation does not apply to U.S. citizens and lawful permanent residents of the United States (Green Card holders).
In addition, the Proclamation exempts certain travelers including Crewman, Foreign Diplomats and members of the U.S. military, as well as:
- Any nonimmigrant who is the spouse of a U.S. citizen or lawful permanent resident;
- Any nonimmigrant who is the parent of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident child is unmarried and under the age of 21;
- Any nonimmigrant 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 nonimmigrant who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee;
- Any nonimmigrant whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
This Proclamation came into effect starting at 12:01am on Tuesday May 4th and will continue until it is terminated by the President.
The following are several points to note about the impact of the “India Travel Ban” Proclamation:
- The Ban applies to foreign nationals seeking to enter the US as nonimmigrants – that is foreign nationals on temporary working visas like the H-1B, the L-1 and the B-1/B-2 Business Visitor Visa, who have been in India within the prior 14 days. It applies to the citizen of any country in the world if they travelled to India within the 14 day period.
- Several of the exemptions from the Travel Ban listed above have potentially broad application. As an example, the 2nd exemption listed above would apply to an Indian national with a valid H-1B visa and her husband with an H-4 visa who have a child born in the US (who is thus a U.S. citizen) who is under the age of 21. Similarly, the 3rd exemption would apply to the minor and unmarried brother or sister of that U.S. citizen child.
- The Secretary of State has identified several categories of people that will fall under the “national interest” exception to the Travel Ban (the 5th exemption listed above), which includes the following:
- Travelers who are coming to the U.S. to provide “vital support for critical infrastructure sectors” (this includes 16 different infrastructure sectors including Healthcare, Information Technology, Communications, Energy and Finance);
- F-1 and M-1 Students and certain academics covered by J-1 exchange visitor programs; and
- People seeking to avoid the Travel Ban based on an argument of “national interest” must apply for a “national interest exception” waiver at their local U.S. Consulate. The rules for how to make these applications and what to include vary from Consulate to Consulate as does the time frame for getting a response, which can be as long as 60 days. Given the severity of the COVID-19 situation in India, we expect that U.S. Consulates there will be leanly staffed and that “national interest exception” waivers will take longer than usual.
- In addition, our office has assisted a number of clients applying for a “national interest exception” waiver based on providing “vital support for a critical infrastructure sector” in other countries that are currently subject the same Travel Ban and have found that the standard for approval of an exemption in this category is very high – and that accordingly, the approval rate is low.
- One approach that can be used to avoid the application of the Travel Ban is to travel to a third country that is not subject to a travel ban and spend 14 full days there. After this time has run (and more than 14 days has elapsed since the foreign national was in India), the traveler can then fly from the third country to the United States. Currently, the U.S. has imposed a travel ban on the Schengen countries of Western Europe, the United Kingdom and Ireland, Brazil, China, South Africa, Iran and now India.
Questions about the India travel ban? Reach out to our immigration attorneys to discuss your situation.