Temporary Suspension of Entry for Recent Visitors to China

 

Introduction

On January 31, 2020, President Donald Trump imposed entry restrictions on foreign nationals who have been to China in the 14 days immediately preceding entry into the United States. The restrictions are designed to prevent the spread of the coronavirus in the United States. With exceptions for lawful permanent residents and immediate relatives of U.S. citizens, most foreign nationals who have been to China within the 14 days immediately preceding their application for admission to the United States will be denied entry. The suspension will persist until it is rescinded by President Trump.

In this article, we will examine the temporary entry restrictions on foreign nationals who have been to China.

You may read the “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus” here [PDF version].

Updates

We will post updates regarding the status of the proclamation in this section as they become available.

Authorities

After explaining the current situation about the novel coronavirus outbreak in China, President Trump laid out his authorities for imposing entry restrictions on certain foreign nationals:

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the unrestricted entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.

INA 212(f) gives the President the authority to temporarily suspend the entry of any aliens or any class of aliens, as immigrants or nonimmigrants, if he determines that such entry would be “detrimental to the interests of the United States.” It is for this reason that the President concluded “that the unrestricted entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States…” (Emphasis added). We discuss 212(f) elsewhere on site [see article], and in the context of President Trump's prior suspension of entry of foreign nationals from certain countries [see article]. INA 215(a) provides circumstances when it is unlawful for aliens to enter the United States. 3 USC 301 codifies the President's ability to delegate his authority.

Scope of the Proclamation

In section 1 of the proclamation, the President suspended the entry of aliens as immigrants or nonimmigrants who were physically present in the People's Republic of China during the 14-day period immediately preceding their entry or attempted entry into the United States. For purposes of the proclamation, “the People's Republic of China” excludes Hong Kong and Macau. It also does not include the Republic of China, otherwise known as Taiwan.

The 14-day period refers to the 14 days immediately preceding the alien's entry or attempted entry into the United States. It does not refer only to the 14-day period immediately preceding the publication of the proclamation (January 31) or its effective date (February 2).

Section 2 of the proclamation provides for exceptions to the suspension of entry. That is, while the President suspended the entry of aliens as immigrants or nonimmigrants who were present in China in the 14 days preceding their entry or attempted entry into the United States, certain aliens will still be permitted to enter even if they were present in China 14 days immediately preceding their entry or attempted entry. Those aliens exempted from the entry restrictions are as follows:

1. Any lawful permanent resident of the United States;
2. Any alien who is the spouse of a U.S. citizen or lawful permanent resident;
3. Any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or unlawful permanent resident is unmarried and under the age of 21;
4. Any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
5. Any alien 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;
6. Any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
7. Any alien traveling as a nonimmigrant under section 101(a)(15)(C) or (D) of the INA … as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
8. Any alien seeking entry into or transiting the United States pursuant to an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
9. Any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Centers for Disease Control (CDC) Director, or his designee;
10. Any alien whose entry would further important United States 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; or
11. Any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

Point 1 creates a major exception for aliens who are already lawful permanent residents of the United States. These aliens will be permitted to enter the United States as permanent residents, regardless of whether they had been to China in the preceding 14 days. Points 2-5 create exceptions for certain relatives of U.S. citizens and lawful permanent residents, although it is important to bear in mind the age and marital status restrictions in points 3-5 on parents, children, and siblings.

Point 7 exempts aliens traveling to the United Nations Headquarters (101(a)(15)(C)) [see article] and a the limited alien crewmen category (101(a)(15)(D)). Point 8 exempts aliens traveling with certain diplomatic visas.

Points 6 and 9-11 refer to special case-by-case exemptions which will likely apply to very few individuals subject to the proclamation.

The proclamation makes clear that none of its provisions will affect an alien's eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.

Implementation and Enforcement of the Proclamation

Section 3 of the proclamation provides general instructions for agencies on its implementation. From these, there are two notable points for affected individuals.

First, the Secretary of State, the Secretary of Transportation, and the Secretary of Homeland Security were instructed to “ensure that any alien subject to this proclamation does not board an aircraft traveling to the United States.” In section 4, President Trump expressly directed the Secretary of Homeland Security to consider directing air carriers to restrict the boarding of affected passengers on flights to the United States. This suggests that the United States will attempt to prevent aliens barred under the proclamation from flying to the United States in the first instance, rather than waiting for them to land before removing them.

Second, the President provided that any alien who attempts to circumvent the proclamation through fraud or willful misrepresentation of a material fact, or illegal entry, will be prioritized for removal from the United States. Any of these actions may have serious adverse consequences on an alien's prospects for obtaining immigration status or benefits in the future, even after the proclamation is no longer in effect.

Medical Security and Quarantines

Certain individuals who are permitted to enter because they are exempted from the entry restrictions may nevertheless be subject to temporary quarantines upon entry. In section 4 of the proclamation, President Trump directed gave the Secretary of Homeland Security the authority to impose quarantines of individuals who enter the United States after possibly having been exposed to the virus. The United States has already quarantined 195 U.S. citizens it evacuated from Wuhan prior to the proclamation. The scope and particulars of quarantines, however, are beyond the scope of this article.

Effective Date and Termination

The proclamation takes effect on 5:00 PM EST on February 2, 2020. It will remain in effect until it is terminated by the President. The Secretary of Health and Human Services will provide a recommendation regarding the status of the proclamation within 15 days of January 31, 2020.

By its own terms, the proclamation instructs agencies to enforce it to the maximum extent possible if any part of it is enjoined or invalidated by a federal court.

Conclusion

In order to prevent the spread of the coronavirus President Trump has imposed sweeping entry restrictions on foreign nationals who are or who have recently been present in China. It is important to note that the proclamation reaches any foreign national who was present in China in the 14 days preceding entry or attempted entry, not only Chinese nationals.

Although the proclamation does not provide specific guidance, those who have been to China recently but not in the 14 days preceding their attempted entry may be required to establish that they are not subject. The same applies for individuals who claim that they are not subject under one of the exceptions. Those who are in China, not subject to the proclamation, who wish to return to the United States should consult with the Department of State for guidance. The Department of Homeland Security and Department of Health and Human Services will likely post updates on potential quarantines of certain returnees from China.

It is unclear, at this time, how long the entry restrictions will remain in place. Those with case-specific questions may consult with an experienced immigration attorney for guidance on the scope of the proclamation.

We will update the site with more information as it becomes available.