By Cyrus D. Mehta and Kaitlyn Box*
In previous blogs we’ve got mentioned the Trump administration’s quite a few COVID journey bans that have been prolonged by President Biden, and offered ideas for overcoming them. On Friday, April 30, 2021, a brand new COVID-related journey ban was carried out, this time by the Biden Administration. President Biden issued a Presidential Proclamation suspending the entry into the United States of nonimmigrants who’ve been bodily current in India up to now 14 days previous their entry as a result of present COVID-19 outbreak in India. This ban can have devastating implications for the numerous Indian H-1B holders who traveled to India on the height of the pandemic to look after, and presumably bury, their ailing mother and father. These vacationers, a lot of whom have spouses and babies within the United States, now face being stranded in India for the foreseeable future.
Like earlier iterations of the COVID journey bans, the brand new Proclamation outlines quite a few classes of people who’re exempt from the restrictions, together with inexperienced card holders, spouses of U.S. residents or inexperienced card holders, mother and father of single U.S. citizen or LPR kids under the age of 21, could immigrant visa holders, and sure different classes of vacationers. Thus, the numerous H-1B visa holders who’ve U.S. citizen kids won’t be impacted. The Proclamation additionally 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’re lined by the ban could possibly search nationwide interest waivers, however doing so could also be tough and require proof that the traveler works in crucial infrastructure.
The Proclamation takes impact at 12:01 a.m. EDT on May 4, 2021, and won’t apply to noncitizens who’re already on a flight to the United States that has departed earlier than that point. Thus, impacted nonimmigrants who can e book a return flight to the United States earlier than the ban takes impact could need to contemplate doing so, although it could be tough to even buy airplane tickets at the moment. The restrictions additionally won’t apply to a nonimmigrant who, after leaving India, spends 14 days in a 3rd nation not topic to a COVID-19 proclamation earlier than coming into the United States. Note, although, that the complete Schengen area is topic to a journey ban and so is the United Kingdom. Hence, any journey by any of those international locations, even when transiting by an airport reminiscent of Frankfurt or London, will topic the particular person to one more ban even after they spend 14 days in a rustic exterior India. As many international locations have imposed restrictions on vacationers from India, vacationers could discover it tough to spend time in a 3rd nation, nonetheless. The United Arab Emirates, for instance, lately prolonged its ban on flights coming from India by May 14th. Others, like Mexico, could impose fewer restrictions on incoming global flights.
As we’ve got argued in a previous blog, imposing journey bans reminiscent of this one usually are not an efficient method to curb the unfold of COVID-19. Immigrant visa holders or U.S. residents who’ve lately been in India are simply as more likely to contract and unfold the virus as nonimmigrant visa holders, so banning some classes of vacationers whereas exempting quite a few others has little utility. For instance, one may very well be a US citizen by advantage of being born within the US, however then this particular person could have spent their whole life in India. This particular person won’t be topic to the ban whereas a totally vaccinated H-1B visa holder who needed to come to India to deal with a sick dad or mum might be topic to the ban. Concerningly, different international locations look like following the United States’ unhealthy instance, together with Australia, which lately took the astonishingly draconian step of banning Australian residents and everlasting residents who’ve traveled to India from returning to Australia. While some could argue that the Australian ban is extra uniform because it retains everybody out and is thus more practical, it’s unnecessarily harsh and in violation of citizenship rules. It can be perceived as discriminating in opposition to Australian residents of India origin whereas permitting Australian residents from different banned international locations to return in. The ban in opposition to Australian residents in India additionally imposes prison penalties, with penalties of as much as 5 years in jail and almost 60,000 Australian money in fines. If the US have been to impose such a ban on US residents or everlasting residents, a court docket could well maintain that it will be unconstitutional. Trump’s initial Muslim ban was efficiently challenged in federal court docket as a result of it additionally included everlasting residents, which might lead to a due course of violation. See, e.g., State of Washington and State of Minnesota v. Trump, 847 F.3d 1151 (ninth Cir. 2017).
Even onerous testing necessities could, in follow, lead to returning residents being banned from reentry. Canada, for instance, requires that Canadian residents who’ve traveled to India or Pakistan acquire a COVID take a look at in a rustic aside from India or Pakistan earlier than they are going to be allowed reentry. Instead of being subjected to ineffective and disruptive journey bans, the United States ought to implement practicable testing necessities, and mandate that returning vacationers quarantine for just a few days previous to entry. With the vaccine turning into available in lots of elements of the world, proof of vaccination is a formidable safeguard and may allow totally vaccinated vacationers to freely enter the United States.
(This weblog is for data functions, and shouldn’t be relied upon as an alternative choice to authorized recommendation).
* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.