Just When I Thought I was Out: Omicron Variant and the Return of Regional COVID-19 Travel BansSamuel Mudrickon November 29, 2021 at 8:31 pm Employment Law Worldview


Following its November 8, 2021 move to remove and replace all regional COVID-19 Travel bans with a blanket vaccination requirement, the Biden administration announced a new COVID-19 travel ban on those seeking to enter the U.S. from various African nations.  The new Proclamation bars most non-U.S. citizens who have been physically present in the following countries during the 14-day period prior to attempting to enter the United States:

Republic of Botswana
The Kingdom of Eswatini (formerly Swaziland)
The Kingdom of Lesotho
The Republic of Malawi
The Republic of Mozambique
The Republic of Namibia
The Republic of South Africa
The Republic of Zimbabwe

Who is covered?

The Proclamation includes several important qualifiers and exemptions. It only applies to “noncitizens” of the United States, but it includes both immigrants (those coming to stay indefinitely) and nonimmigrants (those coming temporarily).

The Proclamation bars entry for noncitizens who have been physically present in the listed countries during the 14 days prior to attempting to enter the U.S., not because of their citizenship. In other words, a South African coming to the U.S. directly from South Africa is barred, but a South African coming directly to the U.S. after 14+ days in Australia is free to enter. Importantly, the Proclamation applies in addition to the blanket vaccination requirement, so anyone seeking an exemption from the new Proclamation must also either be properly vaccinated or qualify under the extremely limited exceptions to the Vaccination requirement.

The new Proclamation does not apply to the following classes:

Lawful permanent residents (aka green card holders). The Proclamation does apply to immigrants, meaning it would bar those seeking to enter on immigrant visas to become lawful permanent residents.
The spouse of a U.S. citizen or lawful permanent resident.
The parent or legal guardian of a U.S. citizen or lawful permanent resident, as long as the U.S. citizen or lawful permanent resident is unmarried and under 21.
The sibling of a U.S. citizen or lawful permanent resident as long as both are unmarried and under 21.
Noncitizen nationals of the United States.
The children, foster children, or wards of a U.S. citizen or lawful permanent resident and certain prospective adoptees.
Those invited by the U.S. government to fight the Corona virus.
Those traveling on certain crewman and transit nonimmigrant visas.
Nonimmigrants in most diplomatic statuses.
U.S. Armed Forces members and their spouses and children.
Those whose entry would not pose a “significant risk” of spreading the virus as determined by HHS and CDC.
Those whose entry would “further important law enforcement objectives” as determined by named agencies.
Those whose entry would be in the U.S. national interest, as determined by named agencies. National interest exception (NIE) procedures are still unclear and should be addressed in the near future, including whether prior NIE approvals will be honored.

In addition, the new Proclamation should not affect any applicant for asylum and other related humanitarian relief such as Withholding of Removal or protections under the Convention Against Torture.

How Long Will it Last and are More Travel Bans Coming?

The Proclamation’s ban began on November 29, 2021 and will remain until terminated by the President. On-the-ground case numbers in each country will determine the White House’s willingness to lift travel restrictions, but an increase in numbers in other countries could see an expansion and return to regional travel bans.

The duration of the new Proclamation and its potential expansion to other countries will likely depend on the effectiveness of vaccines against the Omicron variant and any new variants that arise in the coming months. If existing or newly created vaccines are able to combat new variants, the White House will likely rely on its blanket vaccination requirement and not fall back to the Trump-era country-specific regional bans.

Squire Patton Boggs will continue to monitor and provide updates on these fast-moving developments. Please contact the author with any questions.

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