How The Travel Ban Exceptions Can Affect Your Business

 

Tom owns a company that manufactures clothing but is idle as the result of remote work requirements imposed in response to the COVID-19 pandemic. Tom, however, seeing a huge market for personal protective equipment (PPE), wants to convert part of his production capacity to manufacturing PPE. Such an initiative could allow Tom to restart operations as an essential business and bring some of his employees back to work.

Tom’s friend in Germany, Hans, owns a company that manufactures surgical supplies and Tom asks Hans to send over two engineers, specialized in manufacturing PPE, to help Tom fit out his factory. But Tom has a problem.

On March 16, 2020, President Trump issued a proclamation, which suspends the admission of foreign nationals to the U.S. who were physically present in the Schengen Area (which comprises most of Europe, including Germany) during the 14-day period preceding admission.

The issue for Tom is whether there are exceptions to the presidential proclamation, which would appear to prohibit his engineers from coming to the U.S. He has a factory ready to be fitted out to manufacture equipment in high demand, and much needed by hospitals and members of the public; he has engineers ready to come over from Germany to facilitate this process. What should he do?

The obvious course would be to consult the proclamation’s exceptions, which include, among others “(vi) any alien traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus”; or “(xi) 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.” A last possible exception is any alien “whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.”

While any one exception could possibly help Tom bring over his engineers from Germany, the problem is how he can qualify for them. The proclamation, itself, does not provide any guidance. Nor is there, to date, any clear instruction on how to apply for an exception via the various secretaries of agencies referred to in the proclamation. Should Tom initiate communications with the agencies directly and, if so, how? Or, should the responsibility fall on the engineers to argue that they fall into one of the travel restriction exceptions when applying for their visas? Even if any of these strategies might work, Tom’s needs are urgent, and these things can take time.

The answer to the conundrum is, unfortunately, not a clear one. Without guidance, Tom’s efforts to bring over his engineers will very likely be frustrated. One possibility is for Tom to contact his Federal representatives; his congressperson or senator, who might be able to obtain direction from the relevant agencies or intercede on Tom’s behalf in communicating with the relevant agency secretaries, or facilitating an invitation from the U.S. government.

Tom’s circumstances illustrate the unintended consequences of a policy with the good intentions of protecting the U.S. population, but which also de facto deprives it of expertise that could help mitigate its suffering. In effect, whether by design or by accident, the exceptions to the presidential policy appear to be more illusory than real. Whatever rights Tom may have to seek an exception to the travel ban for his German engineers, there is no clear pathway for him to obtain this remedy. The result may well be that Tom’s engineers will have to remain in Germany while Tom’s factory remains idle at a time of national crisis.

Without any guidance regarding how travel ban exceptions can be invoked, the best course for business owners is to contact their congressional representatives. While each of the travel ban proclamations is a bit different, the European travel ban, imposed by Proclamation 9993, provides that an invitation may be issued to allow the admission of persons related to the containment or mitigation of the virus. Because the exception does not appear to require prior agency approval, maybe all that is necessary, here, is to have a congressional office formally issue such an invitation. It’s worth a try for businesses like Tom’s.

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