The Changing Landscape of COVID-19 Travel: Visa Restrictions under the Trump and Biden Administrations

On January 31, 2020, former President Donald Trump issued a presidential proclamation banning travel from China to the United States. This marked the beginning of the administration’s effort to slow the spread of COVID-19 by means of implementing extensive immigration and visa restriction policies. By the end of May 2020, the Trump administration had issued travel bans to and from China, Iran, the Schengen Area of Europe, the United Kingdom, Ireland, and Brazil. Although termed “bans” they are not total and there are many exceptions. Overall, these proclamations restrict the entry of immigrants or non-immigrants who have been physically present in these geographic areas in the preceding 14 days from entering the country, unless exempted or otherwise excepted. The exceptions include:

• U.S. citizens
• Non-citizen nationals of the United States
• Lawful permanent residents of the United States
• Noncitizen spouses of a U.S. citizen or lawful permanent resident
• And multiple other categories.

In March 2020, the U.S. government began rolling out numerous additional pandemic-related travel and visa restrictions. On March 18, President Trump indefinitely paused all refugee resettlement to the U.S. and suspended all routine immigrant and nonimmigrant visa appointments, effectively pausing almost all legal immigration to the United States. Both refugee resettlement and visa appointments resumed in July 2020 (resettlement resumed in full, and visa appointments were to be phased in), but not before receiving backlash from refugee advocates. On March 23, Trump restricted all nonessential travel on the northern and southern land borders.

Also in March 2020, the Trump administration ordered the implementation of the so-called Title 42 order by the Centers for Disease Control under the Public Health Safety Act, which allows U.S. Customs and Border Protection (CBP) to expel any migrant to the last country of transit or origin “when doing so is required in the interest of the public health.” By April 2020, Title 42 expulsions had already accounted for 90% of all border encounters, which some interpreted as the Trump administration using COVID-19 as a guise for continuing its border deterrence efforts. Initially, the Trump administration applied Title 42 expulsions to all types of migrants—including unaccompanied children—at the border, which was met with significant disapproval from advocates. However, in November 2020, U.S. District Judge Emmet Sullivan ruled that the Trump administration did not have the authority to expel unaccompanied children on these public health grounds. Despite this limitation on Title 42, the Border Patrol used Title 42 to process nearly 87% of all encounters at the southern border in the last two months of President Trump’s tenure.

On April 22, 2020, Trump issued a proclamation suspending most permanent immigration from abroad to protect U.S. workers from pandemic-induced economic decline. This order made the United States the first country to impose mobility limitations on the grounds of economic welfare rather than health concerns. Two months later, this proclamation was extended until the end of the year and expanded to suspend the entry of many classes of nonimmigrant workers, including new H-1B, H-2B, L-1, and certain J-1 nonimmigrants. However, on August 12, 2020, the State Department issued guidance on the allowable exceptions to the proclamations. The statement effectively allowed visa holders and applicants—initially banned by the proclamation—the opportunity to apply for a National Interest Exception (NIE) if certain requirements were met. Holders of a valid U.S. visa, holders of a valid ESTA travel authorization, and applicants for a new U.S. visa are eligible to apply for an NIE. Applicants must prove that they are making a significant contribution to the critical infrastructure or economic activity of the United States, among other categories (ex., health professionals working on COVID are eligible). However, overall admissions are still significantly down from recent years, and the process for obtaining an NIE is complex, requiring a list of exact activities one intends to perform, how those activities directly support critical infrastructure, why they require one’s presence in the United States, and why alternatives like video-conferencing or teleworking fail to directly support critical infrastructure.

Despite promises during the campaign to overturn many of the Trump administration’s immigration rulings, President Joe Biden’s administration has maintained many of its COVID-related travel rules. Large-scale travel restrictions on China, Iran, Europe (specifically the Schengen area), the UK, Ireland, and Brazil remain in force. President Biden re-implemented these travel restrictions on January 25, 2021 through three presidential proclamations, and on the same day, added South Africa to the list of restricted countries. On April 30, 2021, the administration issued another presidential proclamation in which he implemented travel restrictions on India; notably, these travel restrictions applied only to nonimmigrants. The implications of these travel bans are wide-ranging; they have left nonimmigrant visa holders stranded abroad, with little idea of when they will be able to re-enter the country, and have also kept current nonimmigrant visa holders from leaving the United States for fear that they will not be let back in.

These restrictions have had an acute economic impact on both the United States and on the immigrants themselves. According to the Cato Institute, if travel bans persist “for another year, it could permanently reshape flows of talented workers and global investment.” Many epidemiologists, researchers, and other experts also argue that the travel bans are not based on science, and do not accurately reflect changing rates of COVID in different countries. For example, Poland has one of the lowest population-adjusted COVID rates in the world, but is affected by a travel ban, meaning non-Americans from Poland cannot enter the country; Malaysia, however, has 161 times the Polish case rate, and is not affected by any travel bans, meaning non-Americans from Malaysia can enter the country with a negative COVID test.

In addition to these travel bans, the Biden administration announced that the land borders with Canada and Mexico will remain closed for non-essential travel at least through September 21, despite an announcement by Canada that it will allow fully vaccinated U.S. citizens and permanent residents into the country beginning August 9. The Biden administration has continued these Trump-era rules on a monthly basis since taking office.

Finally, President Biden has left in place the Title 42 restrictions on migrants at the border. The administration reportedly had plans to end the public health order on July 31, 2021, but amid a spike in COVID cases and continually high numbers of migrants arriving at the southern border, the Biden administration backed away entirely from rolling back Title 42, and on August 2, 2021, extended the order indefinitely. The Biden administration did make one key change to Title 42. In February 2021, they announced that unaccompanied children would be exempt from expulsions, after a federal court panel overturned a November 2020 court decision that ordered the CDC to stop using Title 42 to expel unaccompanied migrant children. The administration’s handling of Title 42 has led to criticism on both sides of the aisle. Republicans have denounced Biden for what they say is his refusal to enforce Title 42. Chief among them Greg Abbott, the Governor of Texas, who cited Biden’s “failure to enforce the Title 42 order” in an executive order issued in the last week of July that aimed to curb the transportation of migrants in Texas. Conversely, Democrats and immigrant advocates have challenged the order in court and pointed out that the order prevents most asylum seekers from applying for humanitarian protection in the U.S. One high-profile lawsuit from the ACLU accuses the administration of utilizing the policy to restrict immigration and expel families.

Despite the continuation of many of the Trump-era rules, President Biden has tried to loosen some visa and travel restrictions. On February 24, 2021, Biden revoked the Trump-era immigrant visa ban. However, Biden did not revoke the ban on temporary foreign workers coming to the United States. Instead, he allowed it to expire at the end of March 2021, which meant that nonimmigrants like those under H-1B and J-1 visas were mostly shut-out from the country until just a few months ago.

The Biden administration also relaxed travel restrictions for those coming to the United States under NIEs to the geographic travel restrictions. On May 27, the Biden administration made the determination that foreign workers from countries subject to travel bans may apply for an NIE if they are seeking to “provide vital support or executive direction” for critical infrastructure or significant economic activity. Others who may also now qualify for an NIE include journalists, students and certain academics covered by exchange visitor programs, immigrants, and fiancés.

Despite these loosening restrictions, U.S. consulates and embassies around the world are understaffed, closed, or operating at limited capacities, many would-be immigrants are experiencing significant delays in applying for these exemptions and getting their visas.

While President Biden promised to implement a fair, orderly, and humane immigration policy, the administration has left many Trump-era policies in place, which has led organizations on both sides of the aisle to question President Biden’s approach to immigration and plans for immigration reform. Seeing as both the Trump and Biden administrations faced heavy criticism regarding their handling of immigration during the pandemic, it is clear that managing migration in times of crises is extraordinarily complex. The COVID crisis has only illuminated the difficulties that immigrants face.