Beginning on March 17, 2020, the Schengen Member States as well as the four Schengen Associated States (collectively the “Member States”) temporarily restricted all non-essential travel from third countries into the European Union.  These restrictions extended until July 1, 2020, when the EU Council recommended that Member States begin to permit entry from travelers residing in a designated list of third countries.  The United States was not included on this list of permitted countries as the country continues to report the highest number of new COVID-19 cases.

In addition to the EU Recommendation, on July 3, 2020, England relieved travel restrictions for a new list of “travel corridors.”  Effective July 10, 2020, travelers from the list of fifty-nine nations and the fourteen British Overseas Territories will no longer be required to self-isolate upon arrival in England.  Scotland, Wales, and Northern Ireland will announce alterations to travel restrictions in the coming days.

Similar to the EU Recommendation, the United States was omitted from the list of travel corridors.  Travelers from the United States will continue to be required to self-isolate for fourteen days upon arrival in England.

What is the Impact of the EU Recommendation?

The European Union continues to restrict the majority of non-essential travel to Member States by third-country residents, including the United States.  The EU Council’s Recommendation details an initial action plan for a gradual lifting of travel restrictions.  Significantly, the EU Council identified fourteen countries for which any non-essential travel restrictions into Member States should be lifted, including Algeria, Australia, Canada, Georgia, Japan, Montenegro, Morocco, New Zealand, Rwanda, Serbia, South Korea, Thailand, Tunisia, and Uruguay.  China  may be included in the list, pending confirmation of the country’s reciprocity.  The Recommendation is directed at all Member States.  However, Denmark and Ireland will not take part in the collective efforts to lift restrictions.

In consultation with the European Commission and other relevant EU agencies and services, the EU Council crafted the list of countries based on the epidemiological situation in all third countries. Further considerations include whether a country imposed reciprocal travel restrictions and general economic and social considerations for prospective travelers from each third country.  In particular, the EU Council recommends third countries must meet the following criteria prior to lifting non-essential travel restrictions:

  • Close to or below the EU average of new COVID-19 cases over the past fourteen days and per 100,000 inhabitants;
  • The trend of new cases over the same period in comparison to the previous fourteen-day period is stable or decreasing; and
  • The overall response to the COVID-19 pandemic (i.e., testing, surveillance, contact tracing, containment, treatment and reporting, reliability of information, and total average International Health Regulations score).

The EU Council has recommended that residence, rather than nationality, serve as the determining factor in applying travel restrictions.  As such, a national of a restricted country who lives in a non-restricted country would not be restricted from travel to the Members States due to nationality.  For example, if Italy lifts its travel restrictions for travelers from Algeria but not for travelers from Uruguay, a Uruguayan national that resides in Algeria would not be restricted from travel to Italy.  By contrast, an Algerian national who resides in Uruguay would be restricted from travel to Italy.

Will the EU List of Non-Restricted Countries Change?

On a rolling, two-week basis, the EU Council will review and update as necessary the list of countries for which Member States should consider lifting non-essential travel restrictions.  As the recommended list of countries continues to change, each Member State will adjust its restricts to its own travel policy based on the criteria listed above.

Will Ongoing EU Travel Restrictions Remain Consistent Across the European Union?

The EU Council has left implementation of the Recommendation to individual Member States, which means each Member State will enforce its own policy for lifting travel restrictions on the listed countries.  However, Member States will not be permitted to unilaterally lift travel restrictions on countries that have not been included in the June 30 version or any subsequent version of the published list.  Further, the EU Council noted that travel restrictions may be totally or partially lifted or reintroduced for a specific third country given any changes in the criteria listed above.  If a listed country were to see a sudden growth in new cases of COVID-19, a Member State may reintroduce travel restrictions on residents of that country.  Accordingly, decision making will occur rapidly and Member States may lift travel restrictions progressively, which will likely leave an uncoordinated approach to restrictions across the European Union.

Are There Exceptions to the EU Travel Restrictions?

Ongoing travel restrictions will remain in place for all non-essential travel to the EU by third-country residents until each individual Member State lifts the restriction for a given third country.  Where ongoing travel restrictions apply, the EU Council recommends that exemptions apply to:

  • All citizens of the European Union and their family members
  • Long-term residents[1] of the European Union and their family members; and
  • Travelers with an essential function or need.

Member States also will continue to enforce additional safety measures, such as self-isolation, on exempt travelers upon their return from a restricted third country.  The Recommendation allows for these additional measures when those measures are also imposed on the particular Member State’s own nationals.

Who is Impacted by England’s List of Travel Corridors?

England’s list of travel corridors for which the self-isolation rule has been lifted can be found here.  Beginning on July 10, 2020, travelers arriving in England will no longer be required to self-isolate, if they:

  • Are travelling from one of the countries or territories on the travel corridor list; and
  • Have not traveled to a country or territory that is not on the travel corridor list in the past fourteen days.

The UK Department of Transport will continually review international travel conditions, expanding the list of travel corridors and reintroducing travel restrictions as appropriate.

What Does This Mean for Employers?

Multinational companies must monitor the differences in how each EU Member State and the United Kingdom are imposing travel restrictions, particularly in the next several weeks and months.  Employers should be mindful of reciprocal travel restrictions that may be imposed for nationals coming from each EU Member State or the United Kingdom, if such restrictions arise because of reported spikes in COVID-19 cases in a given EU Member State, particularly in the Mediterranean during the summer holidays.  For a heat map of countries which have travel, quarantine or health checks, or visa restrictions and for which travelers are impacted by those restrictions, see our Global Traveler Navigator tool.

If you wish to receive regular updates on the range of the complex issues confronting businesses in the face of the novel coronavirus, please subscribe to our COVID-19 “Special Interest” mailing list.

And for any legal questions related to this pandemic, please contact the authors of this Legal Update or Mayer Brown’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.

 

[1] Long-term residents include those individuals who have gained long-term resident status in the European Union under the Long-term Residence Directive of 2003.  Generally, individuals may gain long-term resident status after having lived legally in an EU Member State for an uninterrupted period of five years, as well as having a regular source of income, health insurance, and, when required by the EU Member State, complied with integration measures.

On June 22, 2020, President Trump signed Proclamation 10052, suspending four visa categories of substantial importance to US companies—H-1B, L-1, H-2B, and certain J-1 visas—for the rest of the calendar year and laid the groundwork for regulatory changes to transform when and how employers can sponsor foreign workers to work in the United States. For a full discussion of the Proclamation, please see our blog post, Trump Order Suspends Major Visa Categories, Including H-1B and L-1, Through the End of the Calendar Year, With Rulemaking Restrictions to Follow.

As initially issued, the Proclamation applies to any alien who:

(i)    is outside the United States on the effective date of this proclamation [June 24, 2020];

(ii)   does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

On June 29, 2020, the White House issued an amendment to Proclamation 10052, stating:

Section 3(a)(ii) is amended to read as follows:

“(ii)   does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and”

The June 29, 2020 amendment is intended to clarify that the exception implicit in Section 3(a)(ii) of Proclamation 10052, applying to any alien with a nonimmigrant visa on June 24, 2020, applies only to individuals with a valid H, J, or L visa who seek admission to the United States in one of those restricted categories. For example, an individual outside the United States who wishes to enter the United States in H-1B status who had a valid B-2 visa but not a valid H-1B visa is subject to the proclamation and would not be eligible to apply for an H-1B visa.

The Government of India has not yet eased its ban on international flights or consular processing services.  The latest announcement from the Government confirms:

  • All scheduled international commercial passenger services will remain closed until July 15, 2020, with exceptions for select routes for which international flights may be permitted made on a case-by-case basis.
  • All Indian visa services (excluding in-country registration, visa extension and other in-country services) remain suspended until further notice.
  • The government has temporarily permitted the FRROs and FROs to provide certain essential consular services. Consular processed visas, electronic visas (e-visas) or stipulations of stay endorsed on the visas, which are set to expire until July 15, 2020 will be extended on a gratis basis for a period of 30 days from July 15, 2020. To avail of this service, the foreign national in India must make an online application on the e-FRRO portal.
  • Foreign nationals whose visas have expired and who have made an application to exit the country, will be granted an Exit Permit without being subject to any penalty for overstay.

 

The UK government has implemented a new form of compliance audit for Tier 2 sponsors conducted by UKVI as a telephone interview.   The new process will supplement but not replace the established activity of full compliance audits that are carried out by the Sponsor Compliance Network at sponsor premises.

Starting on June 15, the Authorizing Officer listed on the Sponsorship License may have received an email requesting participation in a telephone interview with little advance notice. The UKVI wants to assure themselves that sponsors are aware of and continue to adhere to the following key duties expected of them: the monitoring of employees’ immigration documents and their entitlement to work; that any sponsored worker(s) are undertaking the role for which they were granted permission to be in the UK; adherence to sponsorship duties as defined within the Tier 2 & 5 Sponsor Guidance document; and the obligation to retain records of relevant documents.

The interview should last from 30 – 60 minutes. If sponsors wish to nominate an alternative member of the key personnel noted on the sponsor license to carry out the interview, they may do so.

They may also request that their legal counsel partake in the interview.   

 What can Sponsors do now to prepare?

It is the right time for all employers to review legal right to work processes, company reporting, record keeping, migrant tracking and recruitment procedures to ensure on-going compliance with obligations as a Tier 2 sponsor.  We expect there to be a significant increase in this type of telephone sponsor compliance activity in the coming weeks and months, particularly in advance of the opening of the Tier 2 regime to European nationals wishing to work in the UK following the end of the current post-Brexit transition period. It is therefore vital that all sponsors have in place adequate safeguards and compliance procedures to ensure that their on-going employment and immigration obligations are met.

 

 

Hourglass flow

President Trump signed a proclamation on June 22, 2020, suspending four visa categories of substantial importance to US companies – H-1B, L-1, H-2B, and certain J-1 visas – for the rest of the calendar year, and laid the groundwork for regulatory changes to transform when and how employers can sponsor foreign workers to work in the United States. The executive order does not affect visa holders already in the United States who do not travel abroad, or those who are abroad but have already obtained a visa or other travel document. Additionally, the order extends the provisions of the President’s April 22, 2020, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended for 60 days the issuance of new immigrant visas to applicants who are outside the United States.

The order also includes a mandate for subsequent rulemaking to address a wide-ranging series of measures including imposition of new recruitment and compliance obligations on employers, development of a revised regulatory scheme for allocation of and eligibility qualification for H-1B visas, and provision of enhanced investigative and exclusionary authority for consular and port officials.

The June 22, 2020, proclamation immediately extends the immigrant visa suspension, while the entry restrictions for H-1B, L-1, H-2B, and J-1 visas will take effect on June 24, 2020 at 12:01 a.m. EDT. Both provisions are effective until December 31, 2020. Continue Reading Trump Order Suspends Major Visa Categories, Including H-1B and L-1, Through the End of the Calendar Year, With Rulemaking Restrictions to Follow

Today, the Supreme Court—in a 5-4 decision—invalidated the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (“DACA”) program, which provides protection against deportation and work authorization for 700,000 undocumented individuals who were brought to America as children. Mayer Brown submitted an amicus brief—which the Court cited—on behalf of 143 trade associations and businesses in support of the challengers of the Administration’s action.

DHS v. Regents of the University of California (No. 18-587); Trump v. NAACP (No. 18-588); Wolf v. Vidal (No. 18-589)

For our analysis of the decision, link to our Legal Update.

President Trump is expected to issue an executive order in the next several days either eliminating, or significantly limiting, the availability of non-immigrant visas in categories of substantial importance to US companies (H-1B visas for specialty occupation workers, L visas for intra-company assignees, and other related categories), as well as eliminating or substantially curtailing the Optional Practical Training (“OPT”) program which currently allows foreign students graduating from US university programs to work for one to three years after their graduation. This Legal Update provides further detail on what it expected to be in the proclamation and in the subsequent rulemaking.

Read the Legal Update on MayerBrown.com.

As a first step to implementing a system for broadening entry into the country, the Japanese government is currently engaging in discussions to begin permitting entry of certain individuals from Thailand, Vietnam, Australia and New Zealand for business purposes, including management, executives, specialists, technical trainees and internal company transferees.  As discussed in our prior blog post, these four countries are among the 111 countries whose visitors are largely restricted from entering Japan.  Although individuals who are permitted into the country will be exempt from the overarching travel restrictions currently in place (e.g., 14 day self-isolation in Japan upon landing), such individuals will be permitted to travel within Japan only for specified work purposes (discussed below) and will be banned from using public transportation for two weeks upon landing in Japan.  Continue reading at Mayer Brown’s COVID-19 blog

On April 22, 2020, President Trump issued a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” to pause issuance of new immigrant visas to applicants who are outside the United States for 60 days.  As reported on this blog, although the proclamation is currently limited to aspiring immigrants who are outside the United States and do not yet have a valid immigrant visa, it has the potential to affect other visa categories. Specifically, the proclamation requires the Secretary of Labor (“DOL”) and the Secretary of Homeland Security (“DHS”), in consultation with the Secretary of State, to review nonimmigrant programs within 30 days and to recommend “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”  The nonimmigrant measures reportedly under consideration would restrict issuance of new visas in the H-1B, L-1, and H-2B categories as well as the availability of work authorization for foreign students and the spouses of certain H-1B workers who are awaiting the completion of their green card applications.  Continue reading at Mayer Brown’s COVID-19 blog.

Additional details have been provided informally by White House sources that the restrictions under consideration may be deemed “permanent” and that additional fees may be imposed on employers electing to use the H-1B Level 4 category, as discussed in the blog.  Mayer Brown will provide further details as they become available.

 

Effective May 27, 2020 at midnight Japan time, the Japanese government will ban the entry of foreigners who have visited India, Argentina, South Africa or eight other countries for the past 14 days prior to arriving in Japan.  On May 22, the Ministry of Foreign Affairs had placed a Level 3 travel warning level on these 11 countries, urging (but not forbidding) Japanese citizens not to travel to these countries.  There are now a total of 111 countries subject to the entry bans into Japan.  Continue reading at Mayer Brown’s COVID-19 Blog.