On December 31, 2020, President Trump extended Proclamations 10014 and 10052 noted in this article until March 31, 2021 with a requirement to review the proclamations for modifications every 30 days by the Secretaries of Homeland Security, State, and Labor. In the proclamation issued on December 31, 2020, President Trump continued to invoke economic conditions in the United States (U.S.) as a basis for the extension of the proclamations even with the, “marked,” decline of the U.S. unemployment rate in November of 2020 from its April 2020 high. Thus, President-Elect Biden has additional decisions to make regarding this particular legacy from the Trump administration when he assumes office on January 20, 2021.
As we finally approach the end of this horrific 2020 year, there are a number of potential developments to consider as to the variety of travel related restrictions imposed by presidential proclamation during 2020. In addition, on December 28, we have new restrictions being imposed by the ever-mutating COVID-19 virus from the Center for Disease Control (CDC), which may be applied more broadly in 2021.
- December 28 Travel Restrictions to the United States (U.S.) from the U.K.
Order Effective Date – December 28, 2020 at 12:01 am GMT.
Scope – Air passengers from the United Kingdom (U.K.)[1] to the U.S., including U.S. citizens and legal permanent residents. It does NOT apply to those with layovers of less than 24 hours in the U.K.
Requirements to Board Airline –
-
- Passengers are required to get a viral test (NAAT or antigen test) as to current COVID-19 infection within (no more than) three days before the flight from the U.K. to the U.S. departs.
- Passengers must provide written documentation of their negative qualifying laboratory test result (hard copy or electronic) to the airline. In addition, every passenger 2 years of age an older must also provide an attestation form as to testing. (attestation – Attachment A) A parent or legal guardian must attest on behalf of a passenger aged 2 to 17 years. As to passengers unable to attest on their own behalf due to a physical or mental impairment, an authorized individual may provide the attestation. A failure to comply with this requirement or providing false or misleading information may subject the passenger to criminal penalties.[2]
- Airlines must confirm the negative test result for all passengers aged 2 years and older before they board and if a passenger declines to take a test, the airline MUST DENY boarding to the passenger. If any airline fails to comply with this order, they may be subject to criminal penalties.
CDC recommendations on arrival – Travelers should be tested 3 to 5 days after travel AND stay home or otherwise self-quarantine for 7 days after travel even if the COVID-19 test is negative. In addition, travelers must remember to follow state and local travel requirements.
CDC recommendations for those recently recovered from COVID-19 – The CDC does not recommend getting tested again in the three months after a positive viral test, as long as you do not have symptoms of COVID-19. If you have had a positive viral test in the past 3 months, and you have met the criteria to end isolation, travel with a copy of your test results and a letter from your doctor or health department that states you have been cleared for travel.
So how long does it take to get a qualifying test result in the U.K.? The National Health Service (NHS) of the U.K. does not provide free COVID-19 test for those desiring to travel internationally. When NHS provides a free PCR test, the result can be issued on a next day basis, but it may take up to 3 days. British Airlines has a web page devoted to COVID-19 test sites and home testing options for fees ranging from approximately 93 to 200 pounds sterling.
Why is this information so important regarding travel to the U.S. in the future?
As we progress toward the new Biden administration on January 20, 2021, we may see modifications on international travel restrictions based on COVID-19 currently in place with a negative test requirement as outlined above concerning the new U.K. restrictions.
- What about the COVID-19 based travel bans, which have no expiration date at present?
The chart below lists the current travel bans to the U.S. in place when the traveler has been present in the locations noted in the fourteen-day period before traveling to the U.S. These proclamations have no end date until the President makes a determination to terminate them. Certainly, President Biden will have a difficult choice to reverse these health based presidential proclamations, if COVID-19 fatalities and cases from these countries continue to escalate. Of course, the U.K. and Ireland were listed previously. With the mutation of COVID-19 in the U.K. and the announcement outlined above, it is certainly possible in the future that the U.S. may apply the approach described above to the U.K. as to negative COVID-19 tests to the other countries listed. If so, the availability of reliable COVID-19 testing options with quick turnarounds for results will be critical for international travel from these locations. Please refer to this earlier article regarding those, who are exempt from these travel restrictions.
| Country | Effective Date | Proclamation Number |
| People’s Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau | February 2, 2020 5 pm EDT | 9984 – 85 Fed. Reg. 6709 |
| Islamic Republic of Iran | March 2, 2020 5 pm EDT | 9992 – 85 Fed. Reg. 12855 |
| Schengen Area[3] | March 13, 2020 11:59 pm EDT | 9993 – 85 Fed. Reg. 15045 |
| United Kingdom and Ireland[4] | March 16, 2020 11:59 pm EDT | 9996 – 85 Fed. Reg. 15431 |
| Federative Republic of Brazil | May 26, 2020 11:59 pm EDT (originally May 24, 2020) | 10041 – 85 Fed. Reg. 31933 |
| Brazil Amendment | May 26, 2020[5] 11:59 pm EDT | 10041 – 85 Fed. Reg. 32291 |
- When do the current essential travel land border restrictions expire for the U.S./Canadian and Mexican borders?
At present, the essential travel restrictions at the Canadian and Mexican land borders remain in effect until 11:59 EST on January 21, 2021. Any extension of these restrictions will be subject to COVID-19 developments. - What about the immigrant and nonimmigrant visa proclamations (e.g. 10014 and 10052), which are set to expire on December 31, 2020?
We know that on October 1, 2020, the federal district court decision in National Association of Manufacturers v. Department of Homeland Security (NAM) enjoined the government from enforcing section 2 of presidential proclamation 10052 against named plaintiffs and members of the plaintiff associations, including future members of these associations. The named plaintiffs included: the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc. In his decision in this case, Judge White held that presidential proclamation 10052 was beyond the President’s lawful authority under Immigration and Nationality Act, as amended ( INA) §212(f) because: (1) the President’s foreign affairs powers are limited in the context of a purely domestic decision; and (2) the Proclamation unlawfully eviscerates portions of the INA. In addition, Judge White found that U.S. Department of Homeland Security (DHS) did not establish that the President or any federal agency had conducted any evaluation regarding the actual effect of presidential proclamation 10052’s ban on the issuance of certain nonimmigrant visas upon the domestic U.S. economy.So, as to the future of these presidential proclamations, which were both based on domestic economic impact, they …. might die a regular death this year. The Biden Administration has expressed, however, that it will work with Congress in its first 100 days to increase the number of permanent, work-based immigration visas that are responsive to “…macroeconomic conditions. For example, mechanisms would be put in place to temporarily reduce the number of visas during times of high U.S. unemployment..” In addition, the Biden Administration plan notes that it will rescind the Muslim travel ban in the first 100 days.So, if the Biden Administration takes the NAM court ruling to heart, you would expect that Proclamations 10014 and 10052 might not be extended, since they are tied to a domestic policy action. Based on the expressed desire to reduce visa availability during times of economic hardship, however, we will have to wait and see if President Biden takes a page from the Trump administration and continues these economy based Proclamations. Even if these presidential proclamations are not extended, the Department of State is still in recovery mode from the closing of consular posts due to COVID-19 and the availability of immigrant and nonimmigrant visa appointments globally continues to be affected negatively for an unpredictable time in the future.
ABOUT THE AUTHOR
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She 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.
[1]United Kingdom means the United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom and consisting of England, Scotland, Wales, and Northern Ireland.
[2] Failure to provide this attestation, or submitting false or misleading information, could result in delay of travel, denial of boarding, denial of boarding on future travel, or put the passenger or other individuals at risk of harm, including serious bodily injury or death. Any passenger who fails to comply with these requirements may be subject to criminal penalties under, among others, 42 U.S.C. § 271 and 42C.F.R. § 71.2, in conjunction with 18 U.S.C. §§ 3559 and 3571. Willfully providing false or misleading information may lead to criminal fines and imprisonment under, among others, 18 U.S.C. § 1001.
[3] The Schengen Area comprises 26 European states: 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.
[4] The proclamation did not apply to overseas territories of the United Kingdom outside of Europe.
[5] Section 5 is amended to read as follows: “Sec. 5. Effective Date. This proclamation is effective at 11:59 p.m. eastern daylight time on May 26, 2020. This proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 11:59 p.m. eastern daylight time on May 26, 2020.”