Insights

Updated March 3, 2020  

Please note that as of March 2, 2020, the Presidential Proclamation has been updated to include Iran in addition to China.

Late on Friday, January 31, 2020, President Donald Trump issued a Presidential Proclamation (“the order”) barring entry to the United States for most foreign nationals who have visited the People’s Republic of China (PRC) within the past 14 days (here). The order was issued on the same day that U.S. health officials declared the Wuhan coronavirus a public health emergency, and only a day after the World Health Organization declared the virus a global health emergency.

The order bans entry into the United States for all foreign nationals who were physically present within the PRC during the 14 day period immediately preceding their entry to the United States. Foreign nationals who have visited only Macau or Hong Kong – two of China’s Special Autonomous Regions – are exempt from the travel restrictions.

The travel restrictions will affect foreign nationals holding all common visa types, including B-1 business and B-2 tourist visas, F-1 student visas, and H-1B, L-1, J-1, and O-1 work visas (among others). Foreign nationals who have obtained immigrant visas at U.S. consulates and who plan to enter the United States to become Lawful Permanent Residents are also subject to the travel restrictions.

While the order covers the vast majority of the nearly three millions Chinese citizens who visit the United States each year, it is important to note that the order contains several important exemptions to the travel restrictions.

The following are categories of foreign nationals who are exempt from the order:

1. Lawful Permanent Residents (i.e. “green card” holders).
2. Spouses of U.S. citizens or Lawful Permanent Residents.
3. Parents or legal guardians of U.S. citizens or Lawful Permanent Residents (provided the U.S. citizen or Lawful Permanent Resident is unmarried and under the age of 21).
4. Siblings of U.S. citizens or Lawful Permanent Residents (provided the foreign national sibling is unmarried and under the age of 21).
5. Any foreign national who is a 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.

There are additional exemptions in the order that apply to very limited numbers of foreign nationals, such as members of aircrews or foreign government officials entering the U.S. on state business. There are also exemptions for medical personnel working on containing the coronavirus.

The vast majority of foreign nationals who qualify for an exemption will fall into one of the five numbered categories above, including many Dorsey clients. Critically, all green card holders are exempt. All foreign nationals holding (for example) F-1 student visas or H-1B work visas who also have U.S. citizen children are exempt.

However, most foreign nationals based outside of the United States who seek to visit the country on a B-1 business or B-2 tourist visa will be affected. Likewise, foreign nationals on work visas who do not have U.S. citizen children or other familial connections to citizens or green card holders will be subject to the restrictions.

The travel restrictions are expected to significantly disrupt business travel between China and the United States.

The order will come into force at 5:00pm Eastern Standard Time on February 2, 2020, and will remain in place indefinitely, subject to periodic reevaluation.

Because of this timing, it may still be possible for foreign nationals who would be subject to the restrictions to enter the United States before the order is implemented; however, flights from China are increasingly limited due to suspensions of airline service and demand is likely to be extremely high. Furthermore, it is not clear whether the order will affect flights that have departed China before the time of implementation but land in the United States after the time of implementation. Prudence would dictate that foreign nationals seeking to enter the United States before the order comes into effect should seek to land in the U.S. prior to 5:00pm Eastern Standard Time on February 2, 2020. Of course, unexpected flight delays could disrupt even the best of plans.

It is important to note that there are many aspects of the order which remain unclear at this time. For example, the order states that foreign nationals will be turned away prior to boarding aircraft at the point of origin. This suggests that enforcement may fall largely to airline officials, a function for which they are largely unequipped.

Regardless of how competently the travel restrictions are rolled out, foreign nationals who attempt to circumvent the travel restrictions through fraud, willful misrepresentation of a material fact, or illegal entry will be deemed a priority for removal by the U.S. Department of Homeland Security and may be open to additional sanctions or repercussions, including potential bars to U.S. travel in the future.

• Because of the abruptness of this order, implementation may be chaotic, with standards unevenly applied by different airlines, airline officials, and U.S. Customs and Border Protection (CBP) agents. Be prepared for long delays and frustration but keep your cool – arguing with CBP agents is an excellent way to be refused entry to the United States.
• For foreign nationals who qualify for one of the exemptions listed above, travel with documentation of your exemption. For example, if you qualify for an exemption based on a U.S. citizen child, ideally you should travel with a copy of your U.S. citizen child’s birth certificate and passport. For exemptions based on marriage, carry copies of your marriage certificate and spouse’s passport if possible.
• Be proactive. Understand if the travel restrictions apply to you, and be sure to document your travel and itinerary, particularly if you will be traveling to Chinese regions that are technically exempt from the restrictions such as Hong Kong or Macau. Enforcement by CBP can be uneven, so be prepared to document that your trip was solely within one of the exempted regions.
• If you are subject to the travel restrictions, you must wait 14 days outside of China before seeking to enter the United States. Do not count partial days towards the 14 day requirement; generally partial days are not counted in an immigration/customs context. Be prepared to document 14 days outside of China, using visa exit and entry stamps, receipts for hotels and/or lodgings, and other documentation to establish that you have been outside of China for at least 14 days.
• Separate from President Trump’s January 31, 2020 proclamation, numerous media outlets have reported that U.S. citizens who have visited Hubei Province (the center of the coronavirus outbreak) within the 14 days preceding re-entering the United States will be subject to a mandatory 14 day quarantine. For U.S. citizens who have visited any other part of China within the 14 days preceding their re-entry, airport officials will conduct only health screenings. If you are a U.S. citizen who has visited China, be prepared to document your itinerary and show that you did not enter Hubei Province.
• Be prudent. In the current immigration and customs environment, U.S. immigration and customs officials are increasingly enforcement-oriented. In an unstable, uncertain, and quickly evolving situation like this, err on the side of caution. Penalties for non-compliance with immigration regulations can be severe and lifelong, including a permanent bar from entering the United States. While this is unlikely, carefully weigh the temporary inconvenience of a 14 day wait against the potential lifetime risks of non-compliance.

If you would like to contact an attorney to discuss how this order may affect you or your business, please visit our immigration practice group.