On April 30, 2021, the Biden Administration issued A Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019 (COVID-19). The proclamation restricts travel to the United States of noncitizens who have been physically present in India within 14 days of their entry or attempted entry into the United States.

This latest proclamation is one of four COVID-19 related proclamations that limit entry into the United States based on travel from certain areas of the world. These areas include the following:

• Brazil
• China
• Iran
• Ireland
• Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland)
• United Kingdom
• South Africa
• India

Similar to other geography-specific proclamations issued by the prior administration, this proclamation relies on the authority granted to the President by the Immigration and Nationality Act, namely sections 212(f) and 215(a).

WHAT DOES THE PROCLAMATION DO?

The proclamation, like others before it, does two things.

• With some exceptions, it suspends the entry into the United States of noncitizens who were physically present in India during the 14-day period preceding their entry or attempted entry into the United States.
• More controversial, it directs the Secretary of State to implement the proclamation as it applies to the issuance of visas.

The effective date of the proclamation is May 4, 2021.

WHO IS EXEMPT FROM THE PROCLAMATION?

The proclamation does not apply to citizens or nationals of the United States, nor to anyone who is:

• a lawful permanent resident of the United States;
• a noncitizen spouse of a U.S. citizen or lawful permanent resident;
• a noncitizen parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
• a noncitizen sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
• a noncitizen child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
• a noncitizen traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
• any noncitizen traveling as a nonimmigrant pursuant to a C-1 (transit) or D-1 (air or sea crewmember) nonimmigrant visa, or any noncitizen otherwise traveling to the United States as air or sea crew;
• a noncitizen seeking entry into or transiting the United States pursuant to an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
• a noncitizen whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
• a noncitizen who is a member of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces
• a noncitizen whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
• a noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees (see below).

WHAT ARE THE NATIONAL INTEREST EXCEPTIONS?

Like previous travel-related proclamations before it, this latest proclamation contains language that allows an exception for those whose entry would be in the national interest. National interest exceptions to the proclamation allow travel to the United States directly from one of the areas listed above, including India. However, while we trust that those traveling from India would be eligible for the same national interest exceptions as those who travel to the United States from other restricted countries, the U.S. Department of State has yet to update its National Interest Exception (NIE) page to extend NIE eligibility to India.

National interest exceptions include the following:

• Certain F-1 and M-1 students;
• Certain J-1 exchange visitors;
• Fiancé(e)s of U.S. citizens
• Travelers seeking entry for purposes related to humanitarian travel, public health, or national security; and
• Travelers seeking to provide “vital support for critical infrastructures.’

National interest exceptions based on the provision of vital support to critical infrastructures are highly subjective. There has been little guidance to Department of State field offices to clarify what, exactly, the NIE standard is to ensure its application in a consistent manner by consular offices worldwide. And even without clear guidance, the NIE standard is high, since it is competing against the national interest of protecting the health of the general public, which is why the proclamations were issued in the first place.

CURRENT LEGAL CHALLENGES

The most recent proclamation, like those before it, contains the following language:

The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish.

The language is troubling because it allows the Department of State to suspend the issuance of visas, which is arguably something not within the scope of the President’s powers, which is limited to restricting entry into the United States.

For this reason, all eyes are on the case of Kinsley v. Blinken. This case, filed with the District of Columbia District Court on April 7, 2021, challenges the Department of State’s position that individuals without a visa must travel to a third country not subject to a geography-specific entry ban and apply for a visa there. The case argues that the President does not have the authority to suspend the issuance of visas. Because of this, visa applicants who reside in one of the designated countries listed above should be allowed to apply for and receive a visa in that country. This would allow them to go to a third country to quarantine for 14 days before entering the United States.

In addition to the above limits to entry, travelers are reminded that as of January 12, 2021, air passengers aged two years or older, regardless of nationality, flying to the United States must either:

• get tested for COVID-19 no more than three days before their initial flight departs and present a negative COVID-19 test result; or
• present documentation by a licensed health care provider or public health official of having recovered from COVID-19 to the airline before boarding the flight.