Tag Archive for: travel bans

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

If the US Does Not Eradicate Vaccine Inequality, the Requirement of COVID Vaccinations for Many Green Card Applicants Will Result in a De Facto Ban

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By Cyrus D. Mehta

Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a “Class A inadmissible condition,” the Centers for Disease Control and Prevention (CDC) announced. The CDC explained that the COVID-19 vaccination meets the criteria for required vaccinations and is a requirement for applicants eligible for the vaccine regardless of evidence of immunity, a negative COVID-19 test, or prior COVID-19 infection. The new vaccine requirements apply to a foreign national filing an I-485 application for adjustment of status and completing the I-693 medical examination with a designated USCIS civil surgeon or to a foreign national applying for an immigrant visa or refugee status at a US consulate and undergoing a medical examination with a panel physician.

With respect to I-485 adjustment applicants, the CDC  has stated that the applicant “must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before completion of the medical examination.” The COVID-19 vaccination requirement differs from previous requirements in that “the entire vaccine series (1 or 2 doses depending on formulation) must be completed in addition to the other routinely required vaccines. COVID-19 vaccinations can now be given at any time, without regard to the timing of other vaccinations.” Acceptable vaccines include Pfizer-BioNTech, Moderna, and Janssen (Johnson & Johnson).

Panel physicians in countries outside the US may accept vaccines authorized for emergency use or approved by the US Food and Drug Administration  or vaccines listed for emergency use by the World Health Organization. In addition to the three vaccines used in the US, the WHO lists many other vaccines used outside the US such as AstraZeneca, Covishield and Covaxin, Sputnik, Sinopharm and Sinovac, among others. Given that the US vaccines are not widely available in many countries, it is good news that other vaccines will be recognized when intending immigrants overseas must be vaccinated against Covid-19.

Waivers are available for  under both circumstances if the vaccine is not age appropriate, the vaccine is medically contraindicated, or the applicant does not have access to one of the approved vaccines in their home country. Applicants may also apply for an individual waiver on religious or moral grounds.

According to reports, the Biden administration also is developing plans for a COVID-19 vaccine mandate for almost all foreign visitors to the United States, with some exceptions. Note though that proof of the vaccination does not exempt international travelers from the preexisting requirement of presenting proof of a negative Covid-19 test within three days of boarding an international flight to the US.

As there is a great disparity in vaccination programs across the world, the mandating of vaccines for green card applicants and visitors may hinder the ability of people to easily come to the US. According to the NY Times vaccine tracker, https://www.nytimes.com/interactive/2021/world/covid-vaccinations-tracker.html, the UAE has the highest percentage of  fully vaccinated people within its population (76%), while the percentage of fully vaccinated people in countries such as India (10%),  Senegal (3.5%) and Haiti (<0.1%) is abysmally low.

Until now, even if a country was subject to a Covid ban, one applying for an immigrant visa is exempted from the ban.  The lack of vaccine access in a country will surely hinder the immigrant visa process and impose a de facto ban. Those who have won the DV lottery must be processed for the immigrant visa by September 30 each year, and a delay in getting fully vaccinated by the deadline will result in the loss of an immigrant visa under this category. This is not to suggest we should object to the mandatory vaccination of intending immigrants before arriving in the US because of the lack of vaccine availability in many countries, especially in low and lower-middle income countries,  that send many immigrants to the US.  Indeed,  the US needs to ensure in concert with the WHO that there is no vaccine inequality and people from all over the world must have quick and easy access to vaccines. It is a sad state of affairs that vaccine hesitant people in the US refuse to get vaccinated when there is so much  vaccine availability while it is difficult to get a vaccine in other countries.

Finally, we have consistently maintained that the Covid proclamations imposing travel restrictions are ineffective in curbing the spread of the coronavirus as they are riddled with exceptions. US citizens, permanent residents and noncitizens with US citizen or permanent resident children are exempted from the ban. So are those who can obtain national interest exception waivers on a variety of grounds. On the other hand, those subject to the ban have to suffer immeasurable hardships by remaining separated from employers and family members who are in the US. It will make more sense if the US insists that everyone entering the country be fully vaccinated rather than subject countries to Covid Proclamations. However, to make this a worthy goal, the US as a global leader must ensure vaccine equality to everyone in the world. Ensuring equality would be in the interest of the US and the whole world as it would create the best chance to eradicate the coronavirus pandemic once and for all.

 

 

Cyrus Mehta

Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump

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By Cyrus D. Mehta & Kaitlyn Box*

On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). Proclamation 10014, signed in April 2020, suspends certain green card applications, and restricts some nonimmigrant visa categories. Proclamation 10052 of June 22, 2020, itself an expansion of Proclamation 10014, curtailed the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the proclamation and were seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. Our previous blog discusses Proclamation 10052 in detail.

Trump’s latest Proclamation extends the restrictions imposed by the previous Proclamations to March 31, 2021. The administration’s stated rationale for the Proclamation is high unemployment due to the COVID-19 pandemic, and a desire to preserve as many jobs as possible for American workers. This reasoning stands in sharp contrast to Trump’s recent boast that unemployment rates have fallen below 6.7%. It appears that the Proclamation is actually the Trump administration’s last effort at restricting the immigration of highly skilled workers before President-elect Biden takes office in January. The extensions continue to rely on INA 212(f), which gives the president broad power to suspend the entry of foreign nationals whose entry would be detrimental to the interests of the US.  While invoking INA 212(f), Trump has invented new law regarding visa categories outside what Congress enacted through the Immigration and Nationality Act.  Trump relied on INA 212(f) to issue the various iterations of the travel ban and Presidential Proclamation 9822, which banned individuals who cross the Southern border between ports of entry from applying for asylum in the United States, to cite only a few examples.  Another example where the Trump administration invented the law, as discussed in a prior blog,  was in the exceptions to Proclamation 10052. One exception can be availed of by showing that the H-1B worker  is being paid 15% over the prevailing wage. The additional wage requirement is entirely absent from the INA.

Like planting a time bomb, the Trump administration has foisted on Biden the unpleasant choice of rescinding the Proclamation come January 20, likely to be a politically unpalatable move given that unemployment rates will probably remain high in the coming months as the pandemic drags on, or letting the Proclamation expire on its own on March 31, 2021. Regardless of which strategy the Biden administration chooses to pursue, would-be immigrants and highly-skilled foreign workers can take comfort in the fact that the Proclamation will be relatively short lived.

If the Biden administration chooses to rescind the proclamations before March 31, they must be mindful of a recent Ninth Circuit decision which has also upheld the Trump administration’s invocation of 212(f), this time as the authority for Presidential Proclamation 9945, “Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order to Protect the Availability of Healthcare Benefits for Americans.”, which barred immigrant visa applicants for entering the United States unless they could demonstrate the ability to acquire health insurance within 30 days of entry or pay for healthcare expenses on their own.  John Doe #1 v. Trump, No. 19-36020, D.C. No. 3:19-cv-1743-SI, *1-2 (9th Cir. 2020). In Doe #1 v. Trump, the plaintiffs alleged, among other causes of action, that Proclamation 9945 exceeded the President’s authority under INA § 212(f). Id. at 10. The Ninth Circuit rejected this argument and upheld the healthcare proclamation, citing to Trump v. Hawaii in stating that INA § 212(f) grants the President broad discretion to restrict entry. Id. at 22; Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018). The court reasoned that INA § 212(f) limits the President’s authority in three ways – the President must find that entry of a certain class of immigrants is detrimental to U.S. interests, the limitations on entry imposed must be “temporally limited”, and the President must properly identify the “class of aliens” who are subject to the restrictions. John Doe #1 v. Trump at *22-26. The Ninth Circuit also indicated that another potential limitation is that a proclamation may not “expressly override” a provision of the INA, which may exist where the statute solves the “exact problem” as the proclamation. Thus, even if the healthcare proclamation overlapped with the public charge ground of inadmissibility at INA 212(a)(4), the imposition of an additional ground of inadmissibility via INA 212(f) will not be viewed as the proclamation overriding the public charge provision.  Finding that Proclamation 9945 did not exceed any of these limitations, the court upheld it as a valid exercise of the President’s authority under INA § 212(f). Id. at *26.

The Ninth Circuit’s decision in Doe #1 v. Trump may, unfortunately, make it more difficult to challenge Presidential Proclamations issued in reliance on INA § 212(f) as an invalid exercise of Presidential authority. However, the decision can be read narrowly to apply only to Proclamation 9945. It might also give ammunition to those who may wish to challenge Biden’s authority to rescind Proclamation 9945 and the extended Proclamations 10052 and 10014. The new administration must carefully  follow the holding in the Supreme Court’s decision in  Department of Homeland Security v. Regents of the University of California in rescinding Trump’s proclamations under INA 212(f) to ensure the rescissions are not found to be arbitrary and capricious under the Administrative Procedure Act. The Biden administration must provide a detailed and cogent reason for rescinding Trump’s proclamations. In Department of Homeland Security v. Regents, in which the Supreme Court held that the rescission of DACA was a violation of the APA, the Court stated that an agency must comply “with the procedural requirement that it provide a reasoned explanation for its action” in rescinding an existing policy. Department of Homeland Security v. Regents of the University of California, 591 U. S. ___, *29(2020). Special consideration should also be accorded to “whether longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, (2016) (slip op., at 9) (quoting Fox Television, 556 U. S., at 515). A previous blog post discusses Department of Homeland Security v. Regents in greater detail. Given the detrimental impact that Proclamation 9945, together with Proclamations 10052 and 10014, has on U.S. interests, it is hoped that the Biden administration will be able to provide ample and well-reasoned justifications for rescission. Should President-elect Biden rescind the healthcare Proclamation soon after taking office, and withdraw the appeal before the Ninth Circuit’s mandate ensues after 45 days, the opinion may become a moot one.

The Doe #1 v. Trump opinion may limit the avenues for challenging Proclamation 9945, along with Proclamations 10052 and 10014. Although the ban [on H-1B and L-1 workers] was enjoined by the court in NAM (National Association of Manufacturers) v Trump, that ruling was limited to the plaintiff organizations that brought the suit. Therefore, the extension will still be effective on others. The Ninth Circuit’s ruling in the healthcare proclamation case, Doe 1 v. Trump,  may have jeopardized NAM v. Trump, already limited in its application, since the decision in NAM v. Trump was based partly on the idea that the healthcare Proclamation exceeded presidential power. However, all this may not matter if Biden withdraws the appeal before the mandate ensues and also rescinds Proclamation 10052.

We trust that the Biden administration will ensure that Doe #1 v. Trump does not become precedent in the Ninth Circuit, and that it will carefully rescind Trump’s proclamation.

 

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