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ESTA Cancellation Risks and the Schengen Travel Presidential Proclamation

As a result of the March 11 Presidential Proclamation suspending the entry to the United States (U.S.)[1] of immigrants and nonimmigrants (Proclamation), who have been physically present in the Schengen Area[2] during the 14-day period preceding their attempted entry in an effort to stem the spread of COVID-19, U.S. Customs and Border Protection (CBP) advised carriers that effective at 11:59 p.m. eastern daylight time (EDT) on March 13, 2020, they will begin enforcing the Proclamation’s terms.

Update – Additionally, on Monday, March 16 at midnight, the countries affected by the suspension of travel Proclamation will be extended to the United Kingdom and the Republic of Ireland as well.

In addition, CBP also posted a warning that any traveler with valid registration for travel using the Electronic System for Travel Authorization (ESTA) system, who attempts to travel to the U.S. in violation of the Proclamation, will have their ESTA registration canceled.  If this occurs, ESTA will not refund application fees in this circumstance. It is important to note that CBP utilizes the Advance Passenger Information System (APIS) to review pre-arrival and departure manifest data coupled with Passenger Name Record (PNR) information.  Through the use of APIS, commercial airline carriers are not supposed to permit the boarding of a passenger unless they are cleared by CBP.  Also, private aircraft pilots are required to transmit traveler manifests no later than 60 minutes prior to departure of flights arriving in or departing from the U.S.  A cancellation of ESTA will normally result in the traveler being forced to apply for a B-1 (business visitor) and/or B-2 (visitor for pleasure) visa at a U.S. Consulate or Embassy and be subjected to biometric intake and a consular interview.   In this circumstance, we are not sure if a new registration will be possible after the travel suspension ends. Thus, ESTA registrants should book travel to the U.S. with a clear understanding of this warning.  In addition, any ESTA holder thinking about traveling to the U.S. should double-check if their ESTA registration has already been canceled/revoked related to these temporary travel restrictions.  For those in the U.S. based on an ESTA admission, it is important to consult with legal counsel regarding a satisfactory departure approval from CBP, if they are unable to leave the U.S. timely before the expiration of their authorized stay.

What travelers are exempt from the travel restrictions of the Proclamation? (Please note that U.S. citizens are not subject to the Proclamation.)

  1. Any lawful permanent resident of the U.S.;
  2. Any foreign national who is the spouse of a U.S. citizen or lawful permanent resident;
  3. Any foreign national who is the 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;
  4. Any foreign national who is the sibling of a U.S. citizen or lawful permanent resident provided that both are unmarried and under the age of 21;
  5. Any foreign national who is the 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;
  6. Any foreign national traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
  7. Any foreign national traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any foreign national otherwise traveling to the U.S. as air or sea crew;
  8. Any foreign national –
  • seeking entry into or transiting the U.S. 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 (or seeking to enter as a nonimmigrant in one of those NATO categories);
  • whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  1. Any foreign national whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the Centers for Disease Control and Prevention Director, or his designee;
  2. Any foreign national 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;
  3. Any foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees; or
  4. Members of the U.S. Armed Forces, spouses, and children of members of the U.S. Armed Forces.

 How does the Proclamation affect those exempt from the Proclamation upon arrival to the U.S.?

 Foreign nationals exempt from the Proclamation, BUT who have been present in the Schengen Area within the prior 14 days and who are seeking to enter the U.S. at an international airport must possess a valid passport and valid visa or other permissible travel authorization, and one of the following:

  1. An I-551 (Green Card/Legal Permanent Resident Card);
  2. An A-1, A-2, C-2, C-3, E-1, G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa; A C-1, D, or C-1/D visa; An advance parole document;
  3. Documentation evidencing that the foreign national is traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus;
  4. Other documentation from the U.S. Department of Homeland Security, CBP, or U.S. Department of State indicating that the foreign national has been determined to fall within an exception identified above; or
  5. For potential exceptions related to spouses, parents, siblings, or children of U.S. citizens or lawful permanent residents, documentary evidence of the qualifying relationship and status of the relative, along with travel documents that would ordinarily be required for the stated purpose of the foreign national’s travel.

 How is travel to the U.S. for U.S. citizens and foreign nationals EXEMPT from the Proclamation affected?

 This process applies to U.S. citizens as well as U.S. legal permanent residents. For flights departing after 11:59 p.m. EDT on March 13, 2020, the Secretary of Homeland Security directed all flights to the U.S. carrying persons who have recently traveled from, or were otherwise present within, the Schengen Area within 14 days of the person’s entry or attempted entry into the U.S.  to arrive at one of the 13 designated U.S. airports where the U.S. government has prepared public health resources to implement enhanced screening procedures.  Crew, and flights carrying only cargo (i.e., no passengers or non-crew), are NOT SUBJECT to this requirement (includes deadheading crew).  The 13 designated airports are:

  • John F. Kennedy International Airport (JFK), New York;
  • Chicago O’Hare International Airport (ORD), Illinois;
  • San Francisco International Airport (SFO), California;
  • Seattle-Tacoma International Airport (SEA), Washington;
  • Daniel K. Inouye International Airport (HNL), Hawaii;
  • Los Angeles International Airport (LAX), California;
  • Hartsfield-Jackson Atlanta International Airport (ATL), Georgia;
  • Washington-Dulles International Airport (IAD), Virginia;
  • Newark-Liberty International Airport (EWR), New Jersey;
  • Dallas-Fort Worth International Airport (DFW), Texas; and
  • Detroit Metropolitan Airport (DTW), Michigan
  • Boston Logan International Airport (BOS), Massachusetts; and
  • Miami International Airport (MIA), Florida.

This list of affected airports may be modified by an updated publication in the Federal Register or by an advisory posted at www.cbp.gov.

[1] For purposes of this Notice, “United States” is defined as “the States of the United States, the District of Columbia, and territories and possessions of the United States (including Puerto Rico, the Virgin Islands, American Samoa, the Northern Mariana Islands, the Trust Territory of the Pacific Islands, and Guam).”

[2] There are twenty-six countries in the 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.

About the Author:

Kathleen Walker is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She serves on the AILA Board of Governors.  In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified several times before Congress on matters of immigration policy and border security.