State Dept. Updates COVID-19 Travel Exceptions For Europe

By Jennifer Doherty
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Law360 (March 3, 2021, 6:59 PM EST) -- Travelers from Europe's Schengen area, the United Kingdom and Ireland whose work supports critical infrastructure may be eligible to travel to the U.S. despite ongoing COVID-19 travel restrictions, according to a U.S. Department of State announcement Tuesday.

Under President Joe Biden's Jan. 25 Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease, or PP 10143, most travelers are barred from entering the U.S. within two weeks of setting foot in Brazil, South Africa, the 26 countries of the Schengen area, the U.K. or Ireland.

But Tuesday's update may offer additional flexibility for certain travelers from Europe, including those "seeking to provide vital support for critical infrastructure," while canceling exceptions for others.

State had previously defined critical infrastructure sectors as chemical, communications and information technology, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, health care and public health, nuclear reactors, transportation and water systems.

"Travelers in these categories, as well as academics, students and journalists for whom National Interest Exception (NIE) criteria has not changed, may qualify for NIEs to PP 10143 as related to the Schengen area, United Kingdom and Ireland," the agency said. "No previously issued visas or NIEs will be revoked due to the new policy."

The department also announced that it was rescinding an earlier national interest determination that allowed technical experts, senior-level executives, treaty traders and investors, professional athletes and their dependents to apply for authorization to come to the U.S from the European countries identified in the proclamation.

Students who already have valid F-1 or M-1 visas will not need to request an exception to travel, while those applying for new visas, J-1 students and others included in Tuesday's updated national interest determination should check with their nearest consulates, the State Department said.

"The Department of State also continues to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response and national security," the agency said.

Individuals in South Africa whose work impacts food supply chains may apply for exceptions to travel to the U.S. on H-2A or H-2B temporary work visas. State has not issued any national interest determinations concerning Brazil under PP 10143.

Atlanta-based immigration attorney Charles Kuck, whose firm, Kuck Baxter Immigration, has successfully challenged presidential travel bans in five suits since the start of the COVID-19 pandemic, told Law360 that PP 10143 should expect the same fate.

"No one could have imagined a supposedly pro-immigration administration making legal immigration of parents, employees and business investors more difficult, using COVID-19 as an excuse, when alternative methods exist to ensure both the safety of U.S. citizens and protections against new strains, such as with testing and quarantine," Kuck said in a statement.

"It is a certainty that the Biden administration will have to explain to a federal court judge its legal basis for not issuing visas because of this modified proclamation," he continued. "Every time in the past they have tried to justify this exact action, they have failed. They will fail again."

Representatives for the State Department did not immediately respond to request for comment Wednesday.

--Editing by Stephen Berg.

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