Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
As the US works toward easing stay-at-home restrictions, foreign travel suspensions limiting entry to the US have not seen a similar easing. Travel suspensions – and the exceptions to these suspensions – shed considerable light on future COVID-19-based immigration policy. In the time leading up to the Memorial Day holiday, President Trump added Brazil to the list of countries subject to indefinite US travel suspension. Additionally, the US Department of Homeland Security (DHS) extended entry restrictions at the US/Mexico and US/Canada land borders through June 22. At the same time, DHS declared US professional sports leagues exempt from country-specific travel suspensions due to the economic benefits derived from professional sporting events.
As we revisit the COVID-19 travel suspensions, we predict future immigration policy to be driven more closely by economic factors, or at least couched in terms of the economy. The economic needs of the country provide both reasons to make exceptions, such as for professional sports leagues, as well as justifications for those who favor restrictions beyond health-related protections. The latter is reflected in the president's April 22 economy-based 60-day entry suspension. While this suspension had little immediate impact, as explained in our previous client alert, it is significant for the balance between immigration restriction efforts and the economic benefits provided through immigration.
Brazil is Latest Addition to Country-Specific Travel Suspensions
Foreign nationals who have traveled to Brazil within the prior 14-day period will not be permitted to enter the United States as of May 28. This restriction comes from a Presidential Proclamation, issued on May 24. The restriction will remain in place indefinitely, until terminated by the president. The proclamation cites World Health Organization (WHO) reports ranking Brazil third in confirmed COVID-19 cases globally as the basis for the travel suspension. As of the date of publication, Brazil is now second according to WHO reporting.
Brazil now joins China, European countries in the Schengen Area, the United Kingdom, and Ireland, as countries of travel which preclude entry to the US within the specified 14-day period. These are not restrictions based upon citizenship; they are restrictions based upon recent travel to the particular countries.
As with all of the country-specific Presidential Proclamations, Brazil’s travel suspension does not apply to US citizens or US permanent residents (green card holders). It applies to most foreign nationals who have been in Brazil within any portion of the 14-day period immediately prior to their scheduled US arrival. There are exceptions for certain relatives of US citizens and US permanent residents. There are also exceptions for crewmen (ship and air), diplomats and certain international organization employees, and US armed forces and their families.
Canada and Mexico: Restricted Land Borders
Restrictions also currently exist on travel between the US/Canada and US/Mexico which did not arise from a Presidential Proclamation. These restrictions are tied to land-based migration through Mexico and Canada as a health risk designated by the Department of Health and Human Services (HHS). US Customs and Border Patrol (CBP) has issued related Temporary Travel Restriction orders. The essence of these restrictions is that individuals traveling by land from Mexico or Canada pose a health risk. Ferry, pleasure boat, and rail travel from Canada is also restricted.
Based upon mutual agreements between the US/Canada and US/Mexico, non-essential travel between the US/Mexico and US/Canada via land is prohibited. Essential travel is defined to include US citizens and permanent residents returning to the US, medical travel, work-related travel, school-related travel, and travel by those engaged in cross-border trade. There is thus a recognition of the need to permit entry to the United States based on its strong economic ties with both Mexico and Canada. As noted, these restrictions apply to the land borders, rather than air, freight rail, or sea travel. The new expiration date for the restrictions, following a 30-day extension, is now June 22.
60-Day Immigrant Suspension: Labor Market Risk
In addition to the country-specific, pandemic-related, travel suspensions, the president issued a 60-day Labor Market Risk Proclamation suspending entry of immigrants based on economic considerations. Given the limitations and timing of this proclamation, it had little actual immediate impact. However, it is unlikely that efforts to control immigration levels based upon an economic impact argument will end with this temporary measure. The Labor Market Risk Proclamation is rooted in current unemployment rates and the need to protect the US labor market from foreign competition. While the proclamation notes that labor market protections are already embodied in the immigration system, it asserts these protections are insufficient in light of the economic downturn. On that basis, the administration sought to halt a wide range of permanent US immigration for individuals outside the country for a period of 60 days.
In addition to the efforts to limit permanent immigration, the proclamation contains a requirement for the review of nonimmigrant (temporary) programs by the Department of Labor (DOL), Department of State (DOS), and DHS. The purpose of the review is to make recommendations to stimulate the US economy and ensure prioritization of hiring US workers. This language echoes similar directives under the President's Buy American Hire American (BAHA) initiative launched early in his administration. There has been substantial speculation that this directive, and the current economic downturn, will lead to the resurrection of some of the more restrictive BAHA proposals and similar measures.
There is a lot to consider within the Labor Market Risk proclamation. Even this restrictive measure recognizes the economic value of immigrant investors and the US need for foreign physicians, nurses, and healthcare providers. Both of these groups are specifically exempt from the suspension. Moreover, even during the height of the stay-at-home requirements, accommodations have been made throughout the immigration systems, including deadline extensions, original signature waivers, and DOL compliance adjustments. For more information about some of these accommodations, see our client alerts on Form I-9 Updates and the Visa Waiver (ESTA) program. Assisting employers with workforce flexibility, including foreign national employment, is a trend that should continue as the economy transitions to new workplace environments. As the United States seeks to boost employment, the same flexibility is needed to accommodate the important role of international mobility for multinational companies, investors, academia, and others that rely on foreign talent. Ultimately, should there be overstepping in restrictions based on the philosophy embodied in the Labor Market Risk Proclamation, recent weeks have also brought favorable litigation outcomes and the retraction of an important BAHA-related immigration policy pertaining to H-1B temporary professional workers.
Recent National Interest Exemptions: Professional Sports Provides a Sample
As noted above, within the country-specific travel suspensions, there is an exception for foreign nationals whose entry would be in the national interest, as determined by the DOS or DHS. On May 22, DHS exercised this authority to establish, in effect, a blanket designation applicable to professional sporting groups to enable foreign national athletes, staff, and team leadership to gain entry to the US notwithstanding the country-specific travel suspensions. This exemption was based on the economic importance of professional sports and the need to reopen the economy.
In addition to Major League Baseball (MLB) and the National Basketball Association (NBA), this economic benefit, National Interest Exemption was extended to the Professional Golfers' Association Tour (PGA Tour), the National Hockey League (NHL), the Association of Tennis Professionals (ATP) and the Women's Tennis Association (WTA). This announcement follows similar exemptions the administration has made for "essential workers" including medical professionals and agricultural workers.
The new exemption is quite expansive, providing insights and potential opportunities for other organizations to advocate for such recognition of value to the US economy. As the United States seeks to return the economy to normalized operations, there will likely be other instances where the need arises to recognize sectors with similar requests. Despite current unemployment rates, a lack of fungibility of the workforce exists in many specialized areas. Reviving the economy in both the short- and long-term will depend on a robust workforce of both domestic and foreign employees. The opening of professional sports and the inclusion of foreign-born players, staff, and management, is a perfect example of such need, but not an isolated situation.
Economy-Based Selection
The takeaway from revisiting the travel suspensions is that the economy will drive or justify future immigration policies. At the moment, we are seeing an effort to pick and choose entry eligibility based on what is viewed as helpful or harmful to the economy. The country-specific suspensions are based on health concerns, but broad exceptions are available for those who are seen as providing an economic benefit to the United States. Indubitably, as the COVID-19 pandemic continues other groups will push to be categorized as economically beneficial to the United States and therefore eligible for an exception to country-specific immigration suspensions. The carve-out for EB-5 investors and healthcare professionals in the earlier proclamation, coupled with the recent development for professional athletes, signals that there remains a level of recognition or concession to the economic value provided by the foreign national talent base. Slowly phasing in the return of US immigration practices while implementing modifications to the system will bring about new challenges as well as solutions. We will continue to track these developments and are available to assist with navigating these ongoing changes as the United States begins to relax stay-at-home restrictions and works to reinvigorate its economy.