Tag Archive for: Covid

Cyrus Mehta

The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers

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By Cyrus D. Mehta & Kaitlyn Box*

On November 26, 2021, President Biden issued a Presidential Proclamation entitled “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019” in response to a report made by the South African government to the World Health Organization (WHO) that a new B.1.1.529 (Omicron) variant of the virus that causes COVID-19 was detected in the country. Reports from the WHO indicate that certain characteristics of the Omicron variant, including an increased risk of reinfection, make it a particular cause for concern. The Proclamation bans many travelers who have been in South Africa or neighboring countries Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe in 14 days preceding their entry from coming into the United States. The administration has indicated that it could add additional countries to the list if needed.

Unlike the previous COVID-related travel ban for India that applied only to nonimmigrants, this Proclamation, like the omnibus Proclamation of January 25, 2020, bars nonimmigrants and immigrants alike from entering the United States. The ban appears to apply even to individuals who are fully vaccinated. President Biden’s most recent Proclamation does share one commonality with its predecessors, though – it exempts numerous categories of travelers from the restrictions, including U.S. citizens, LPRs, spouses of US citizens or permanent residents, parents of minor US citizens or permanent residents, and noncitizens whose entry would be in the national interest. Several other countries have issued similar restrictions on travel from South Africa and neighboring countries, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. Japan and Israel have sealed their borders to all foreigners.  On November 27, 2021, the Department of State also issued a Level 4 Travel Health Notice for South Africa, indicating: “Do not travel to South Africa due to COVID-19.”

As we have argued in prior blogs,  travel bans are not an effective means of curbing the spread of COVID-19. Like previous iterations of the COVID-related travel bans, this most recent Proclamation outlines a number of exemptions for certain categories of travelers, all of who are just as likely to carry COVID-19 as the immigrants and nonimmigrants who are barred from entering the United States. Even a nonvaccinated U.S. citizen who had recently been present in South Africa could freely enter the United States under the Proclamation, while a fully vaccinated nonimmigrant could not. Of course, all travelers must undertake COVID tests before entering the US, and noncitizen travelers with very few exceptions must be vaccinated.  Ensuring that these protocols are strictly adhered to, including testing after arrival in the US, and even quarantining as necessary, will be more effective than a travel ban. Travel bans seem to be based more on politics rather than on science so that leaders can demonstrate that they are doing something to prevent the spread of the new variant even if it has spread already and its effects are largely unknown.  The existing set of Presidential Proclamations suspending the entry of nonimmigrants who had recently been present in a host of countries impacted by COVID-19 terminated as recently as November 8, 2021. Like its predecessors, the new Proclamation is likely to do little to prevent COVID-19 infections in the United States, but is sure to devastate families, separate employees from their U.S. employees, and cause untold hardship and confusion for unwary travelers. Past precedent has also shown that once a ban is imposed, it is not likely to get rescinded soon.

Furthermore, the Proclamation penalizes South Africa for detecting the Omicron variant and altering the WHO to its dangers. South African President Cyril Ramaphosa has condemned the ban, describing its uselessness in preventing the spread of COVID-19 and its potential for causing serious damage to the South African economy. Further underscoring the futility of the ban, South Africa has higher vaccination rates and more sophisticated scientific and medical facilities than most African countries, though it has still faced some challenges in administering vaccines quickly enough. Although the Omicron variant has also been detected in Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany, these countries are not presently included in the ban. The travel restrictions imposed on South Africa and its neighbors may even make other countries less likely to report the discovery of other new variants, lest they too face an onerous travel ban. As a result of flights not going into South Africa, one public health official, Tulio de Oliveria, angrily tweeted that his lab will run out of reagents needed to test for the variant.

Fortunately, the U.S. Embassy in South Africa has announced that South African consulates will continue processing visa applications, and embassies in neighboring countries appear to be following suit. These operations are consistent with recent federal court decisions holding that the State Department cannot use COVID-related travel restrictions as a justification for refusing to issue visas. It is also hoped that this signals that the ban may not remain for very long. Until these ineffective travel bans are rescinded for good, however, they will continue to cause serious hardship for travelers from many African countries while doing little to prevent the spread of the Omicron variant.

(This blog is for informational purposes, and should not be relied as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

US Imposes Covid Travel Ban on India: How Effective Are Such Travel Bans?

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By Cyrus D. Mehta and Kaitlyn Box*

In previous blogs we have discussed the Trump administration’s numerous COVID travel bans that were extended by President Biden, and provided suggestions for overcoming them. On Friday, April 30, 2021, a new COVID-related travel ban was implemented, this time by the Biden Administration. President Biden issued a Presidential Proclamation suspending the entry into the United States of nonimmigrants who have been physically present in India in the past 14 days preceding their entry due to the current COVID-19 outbreak in India. This ban will have devastating implications for the many Indian H-1B holders who traveled to India at the height of the pandemic to care for, and possibly bury, their ill parents. These travelers, many of whom have spouses and small children in the United States, now face being stranded in India for the foreseeable future.

Like previous iterations of the COVID travel bans, the new Proclamation outlines numerous categories of individuals who are exempt from the restrictions, including green card holders, spouses of U.S. citizens or green card holders, parents of unmarried U.S. citizen or LPR children under the age of 21, may immigrant visa holders, and certain other categories of travelers. Thus, the many H-1B visa holders who have U.S. citizen children will not be impacted. The Proclamation also exempts “any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees”. Thus, noncitizens who are covered by the ban may be able to seek national interest exception waivers, but doing so may be difficult and require proof that the traveler works in critical infrastructure.

The Proclamation takes effect at 12:01 a.m. EDT on May 4, 2021, and will not apply to noncitizens who are already on a flight to the United States that has departed before that time. Thus, impacted nonimmigrants who can book a return flight to the United States before the ban takes effect may want to consider doing so, though it may be difficult to even purchase plane tickets currently. The restrictions also will not apply to a nonimmigrant who, after leaving India, spends 14 days in a third country not subject to a COVID-19 proclamation before entering the United States. Note, though, that the entire Schengen region is subject to a travel ban and so is the United Kingdom. Hence, any travel through any of these countries, even if transiting through an airport such as Frankfurt or London, will subject the person to yet another ban even after they spend 14 days in a country outside India.  As many countries have imposed restrictions on travelers from India, travelers may find it difficult to spend time in a third country, however. The United Arab Emirates, for example, recently extended its ban on flights coming from India through May 14th. Others, like Mexico, may impose fewer restrictions on incoming international flights. Moreover, consular posts in India will likely not issue H-1B visa stamps to those who are subject to the ban on the flawed reasoning that if an applicant is subject to a ban they should not even receive a visa. There is no reason not to as they can spend 14 days in another country before seeking to enter the US, but based on experience with posts in other countries subject to Covid bans, they will not get a visa and lawsuits may need to be filed as in Gomez v. Trump , which involved DV lottery winners who were subject to Trump’s Proclamation 10014 and who got a ruling that they should be entitled to visas even though the ban was still  in effect.

As we have argued in a previous blog, imposing travel bans such as this one are not an effective way to curb the spread of COVID-19. Immigrant visa holders or U.S. citizens who have recently been in India are just as likely to contract and spread the virus as nonimmigrant visa holders, so banning some categories of travelers while exempting numerous others has little utility. For example, one could be a US citizen by virtue of being born in the US, but then this person may have spent their entire life in India. This person will not be subject to the ban while a fully vaccinated H-1B visa holder who had to come to India to take care of a sick parent will be subject to the ban.  Concerningly, other countries appear to be following the United States’ bad example, including Australia, which recently took the astonishingly draconian step of banning Australian citizens and permanent residents who have traveled to India from returning to Australia. While some may argue that the Australian ban is more uniform as it keeps everyone out and is thus more effective, it is unnecessarily harsh and in violation of citizenship principles. By not allowing its citizens to return, they may overstay their welcome in India,  fall out of status and become deportable. They may also be more susceptible to Covid by being forced to remain in India, and will not have ready access to the vaccine as they may have in Australia.  The Australian ban, in addition to being cruel for abandoning its own citizens,  is  also perceived as discriminating against Australian citizens of Indian origin while allowing Australian citizens from other banned countries to come in. The ban against Australian citizens in India also imposes criminal penalties, with penalties of up to five years in prison and nearly 60,000 Australian dollars in fines. If the US were to impose such a ban on its  citizens or permanent residents, a court may well hold that it would be unconstitutional. Trump’s initial Muslim ban was successfully challenged in federal court because it also included permanent residents, which would result in a due process violation. See, e.g., State of Washington and State of Minnesota v. Trump, 847 F.3d 1151 (9th Cir. 2017).

Even onerous testing requirements may, in practice, result in returning citizens being banned from reentry. Canada, for example, requires that Canadian citizens who have traveled to India or Pakistan obtain a COVID test in a country other than India or Pakistan before they will be allowed reentry. Instead of being subjected to ineffective and disruptive travel bans, the United States should implement practicable testing requirements, and mandate that returning travelers quarantine for a few days prior to entry. With the vaccine becoming readily available in many parts of the world, proof of vaccination is a formidable safeguard and should enable fully vaccinated travelers to freely enter the United States.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.