More than one-third of new global cases of COVID-19 have occurred in India, and the numbers are increasing.

As a result, President Biden has added the Republic of India to the list of countries whose nationals and visitors (with some exceptions) are subject to travel restrictions on entering the United States.

On April 30, the President issued the “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019.” The new restrictions apply to any non-immigrant who is physically present within India during the 14-day period before attempted entry to the United States. The restrictions took effect yesterday at 12:01 a.m. Eastern Time.

Although the addition of India to the list of restricted countries is understandable, it will add a layer of unpredictability for U.S. employers as well as the non-immigrants who are subject to the Proclamation.

Exemptions

Fiancé (K-1) and approved immigrant visa holders are exempt and are deemed to be in the national interest, consistent with the April 8 announcement by the U.S. Department of State.

The restrictions also do not apply to U.S. citizens, permanent residents, the immediate family members of U.S. citizens and permanent residents, or other excluded groups listed below. If proof of an exemption is presented to the airline, or to U.S. Customs and Border Protection at airports where there is pre-clearance processing, the individual will not be subject to the Proclamation.

This travel ban does not apply to the following:

  • Any lawful permanent resident of the United States.

  • Any non-citizen national of the United States.

  • Any non-citizen who is the spouse of a U.S. citizen or lawful permanent resident.

  • Any non-citizen 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.

  • Any non-citizen who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21.

  • Any non-citizen 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.

  • Any non-citizen traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus.

  • Any non-citizen traveling as a non-immigrant pursuant to a C-1, D, or C-1/D non-immigrant visa as a crew member, or any non-citizen otherwise traveling to the United States as a member of an air or sea crew.

  • Any non-citizen

    • seeking entry into or transiting the United States pursuant to one of the following visas: 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 (or seeking to enter as a non-immigrant in one of those NATO categories); or

    • whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement.

  • Any non-citizen who is a member of the U.S. Armed Forces or who is a spouse or child of a member of the U.S. Armed Forces.

(The above is quoted, with minor edits, from the Proclamation.)

Can a non-immigrant currently in India file for a National Interest Exception waiver?

Applying for NIE waivers has become an important action item during the pandemic for individuals who need to enter the United States despite the travel restrictions.

Similar to other Proclamations, here are the grounds for an NIE under this Proclamation:

  • Any non-citizen 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.

  • Any non-citizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

(The above is quoted, with minor edits, from the Proclamation.)

According to the American Immigration Lawyers Association, on March 2, the Secretary of State rescinded the previous national interest determination that allowed “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents” to enter the United States. The Secretary also “made a new national interest determination covering certain travelers seeking to provide vital support of critical infrastructure sectors as defined by the Department of Homeland Security or critical infrastructure linked supply chain,” according to AILA.

We have previously reported — on July 28, 2020, September 28, 2020, and April 1, 2021 — on the ever-changing interpretations of the standards for NIEs, the procedures to apply for an NIE at a U.S. Embassy or Consulate, and the need to contact the applicable U.S. Embassy or Consulate or CBP office at a port of entry to determine what the standards, processing times, and procedures are there. If you need assistance with an NIE waiver application, please feel free to contact us.

The bottom line

Travel to the United States from India and other countries with inbound travel restrictions will be difficult while their respective Proclamations are in effect. If you have an employee who qualifies for an enumerated exemption or an NIE, you will need to make sure that the employee has the appropriate documentation to board a U.S.-bound flight. The requirement imposed by the Centers for Disease Control and Prevention -- which requires a negative coronavirus polymerase chain reaction test (the more accurate “nose swab” test) within 72 hours of boarding a flight to the United States -- is still in effect.

The other countries with inbound travel restrictions are the People’s Republic of China (excluding the Special Administrative Regions of Hong Kong and Macau), the Islamic Republic of Iran, the Schengen Area, the United Kingdom (excluding overseas territories outside Europe), the Republic of Ireland, Brazil, and South Africa.