On March 13, 2020, the proclamation of the President of the United States of America came into force, suspending the entry of persons who were present in one of the 26 countries of the Schengen area in the last 14 days before the planned date of arrival in the USA. Another proclamation by President Trump also imposed the same restrictions on the United Kingdom and Ireland. The purpose of travel restrictions was to prevent the spread of Covid-19 in the USA. The subsequent proclamations were no longer dictated only by medical considerations. The President of the USA also limited the arrival of certain economic immigrants to the USA in order to help rebuild the U.S. economy which suffered from the pandemic. So who can currently travel to the USA?

Travelling as a tourist from the Schengen area to the USA is currently impossible. Pursuant to President Trump’s proclamation of March 13, 2020 and June 22, 2020, the issuance of new non-emigration visas has been suspended and travel to the USA has been limited only to special cases such as for pandemic prevention or medical research related to the pandemic. The proclamation of March 13, 2020 comprises a number of exemptions and does not primarily apply to U.S. citizens and permanent residents. The restrictions also do not apply to persons who stayed in the USA at the time of the proclamation. Persons who are subject to the exclusions must apply for a permit to leave the Schengen area and obtain the National Interest Exception. Students who have F or M visas with a valid I-20 form do not have to apply for a permit to travel to the USA.

The proclamation of April 22, 2020 which remained in force for another 60 days, and was subsequently amended and extended by the proclamation of June 22, 2020, significantly reduced economic emigration to the USA. Until December 31, 2020, no H1B and L visas are issued except to healthcare professionals. However, the proclamation may be extended for another period. E2 visa applicants must also currently apply for the National Interest Exception. There are no restrictions for investors in the EB1 or EB5 category. However, the latest guidelines on the proclamation of June 22, 2020 indicate some relaxation of the H1B or L visa restrictions. Currently, it is possible to renew them and change employers during a valid and legal stay in the USA.  

In some situations, however, it may be difficult to determine the possibilities of travel to the USA. This is because there are currently no clear guidelines on the application of the proclamation and the relationship between them. For example, the proclamation of June 22, 2020 explicitly states that the proclamation does not apply to persons holding a valid visa for a specific immigration or non-immigration category to the USA that has been affixed to their passports, including, among others, H1B and L visa holders. However, the consular or border services have repeatedly stated that the flight ban does not apply only to U.S. citizens and permanent residents and those who have obtained the National Interest Exception.

Even if a visa category is found to have been excluded from the application of the proclamation, the question remains whether the proclamation of March 13, 2020 is applied and the person excluded from the June proclamation is subject to the Schengen travel ban. Unfortunately, there is no official answer to this question and many others. We can find many opinions and articles from immigration attorneys stating that persons excluded from the proclamation of June 22, 2020 are free to travel to the USA from the Schengen area. However, the views of immigration services on this issue are often completely different. Those seeking information about flight options to the USA may not rely on information from airlines, either. If an airline allows a person to board and then this person is refused to enter the USA at the destination airport, the airline is responsible for the return flight. Therefore, as a rule, if in doubt about the possibility of the flight, the airline staff will not give permission to board.

To sum up, there are many limitations and exceptions and it can be very complicated to get through them. Before deciding to travel to the USA, it is worth determining whether the flight is possible by obtaining confirmation from the embassy or by obtaining appropriate documents. It may also be necessary to apply for the National Interest Exception with a description of your situation and justification of the need for a flight.

Att. Jarosław Kurpiejewski

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