We anticipate that sometime this year the US will lift the travel ban that includes all Schengen countries, the UK, China and others. Although there are many rumors about when this will happen, the US government is silent.
If the United States lifts the travel ban, US visa holders in the United States will wonder many questions about whether they can travel overseas, when they can return, and what obstacles they will face. The following FAQs answer these questions. We will update them if necessary.
1. Do I need a National Interest Exemption if the United States lifts the travel ban?
Reply: No. If the travel ban is lifted completely and no other restrictions are put in place, travel will return to “normal” before the pandemic. In other words, you don’t need any special prior authorization to fly direct to the United States from countries previously banned. You also don’t need to show that you are tax exempt because you have an immediate relative (spouse or child) who is a US citizen.
2. If the US lifts the travel ban, will I need a Covid vaccination to return after an international trip?
Reply: Possibly. The travel ban can be lifted in stages so that vaccinated people can travel initially.
3. If the US lifts the travel ban, will I need a negative Covid test to return after an international trip?
Reply: Possibly. That is left to the CDC. From the beginning of June 2021, a negative Covid test will be required for all passengers flying to the USA from the age of 2, regardless of where they are flying from. If the CDC decides to change this rule, it will be announced on CDC website.
4. If the United States lifts the travel ban, can I leave the United States and go to my home country to see my family and friends?
Reply: As a US visa holder, you can leave the country at any time. The question is when can you return, which may depend on whether you need a US visa in your passport that only US consulates can issue. (See below.)
5. Do I need a US visa on my passport to return to the United States and resume my current nonimmigrant visa status?
Reply: With the exception of Canadian passport holders (other than e-Visa holders), each work-based nonimmigrant visa holder must have a valid, unexpired visa on their passport that corresponds to their eligible work status as specified on their USCIS approval notice (Forms I-797 .). or I-129S) to return to the United States. Family members with dependent status must also have valid, unexpired visas on their passports in order to return to the United States.
6. My current visa has not expired and falls into the same category as my letter of admission. Do I need a new visa to return to the United States after traveling abroad?
Reply: As long as you return with your unexpired, valid visa and approval notice before either deadline has expired, U.S. Customs should allow you to have the same visa status by the end date stated in the approval notice. For example, if you have an unexpired H-1B visa on your passport that references the name of a previous employer and your most recent H-1B New Employer Approval Notice is listed with a longer expiration date than the visa, those two Documents together allows a U.S. customs officer to admit you in H-1B status. However, the visa and the approval notification must correspond to the same visa classification.
7. My current visa has expired, but I have an approval notice extending my status in the same visa classification. Do I need a new visa to return to the US?
Reply: Yes, you will need to use the new approval notice to obtain a new visa at a US consulate overseas. Your family members will also need new dependent visas.
8. The visa I used to enter the United States has a different visa classification than the approval notice my employer received for me, which changed my visa classification. Do I need a new visa to return to the US?
Reply: If USCIS changed your status after you arrived in the United States, you will need a new visa on your passport in the same visa classification that is listed on the new approval notice. For example, if you entered on an F-1 student visa and then a U.S. company filed an H-1B status change request for you and approved it by USCIS, you will need an H-1B visa on your passport to return after the trip abroad. Your family members will also need new dependent visas.
9. I have heard that if USCIS extends my status and / or changes my status to a new visa classification, I can travel to Canada or Mexico and back without getting a new visa in my passport. Is that true?
Reply: Yes, it’s true, but only if you visit one of these countries for 30 days or less will you not apply for a US visa there and do not travel between states leaving and returning to another country. This procedure is the “automatic extension of the visa at the port of entry”. Before resorting to this legal requirement, you should consult a lawyer to ensure that it will still be available in the event of a planned return and that you have the necessary documentation to return after your short trip.
10. I heard that it was very difficult to make visa appointments at US consulates during the pandemic and travel ban. Will it be easier to make visa appointments overseas if the US lifts the travel ban?
Reply: Possibly, but probably not right away. We expect persistent backlogs on visa appointments. While we expect the U.S. consulates to return to pre-COVID scheduling, we don’t expect it to happen very quickly. If the United States lifts the travel ban, the consulates may not be fully staffed. Even those who are fully staffed are unlikely to go back to pre-COVID planning right away as there is still a risk of COVID transmission in many countries. As the vaccines become more widespread, the US consulates are likely to provide more appointments. For countries with rising COVID cases, appointments remain difficult to secure. Currently, most U.S. consulates only schedule emergency appointments, and those that schedule regular appointments do so for late 2021 and early to mid-2022.
11. I have a visa appointment planned for early 2022. If the consulate releases further appointments, will my appointment be postponed to an earlier date?
Reply: It can depend on the consulate in question whether it automatically postpones appointments to earlier ones or whether it is up to the applicant to make a new appointment. It is advisable to check the consulate’s website regularly to see if earlier appointments are available. This may require a daily check.
12. What are the chances of getting an emergency appointment to get my visa?
REPLY: Low. Currently, US consulates are inundated with appointment requests, most of which are turned down. Unless the emergency results in a life-threatening situation, you can assume that you will not get one. However, it doesn’t hurt to make the request.
13. Can I apply for a US visa at a US consulate in a country other than my home country?
REPLY: Probably not. Because visa appointments are difficult to plan, most U.S. consulates do not accept visa applications from third-country nationals and only give visa appointments to local citizens or long-term residents.
14. Can I extend my visa while I am in the US?
REPLY: Unfortunately, not. The ability to apply for a “visa renewal” at the State Department ended after the tragic events of September 11, 2001. Therefore, you must apply to a US consulate abroad. There are rumors that the US may reintroduce visa renewals in the United States at some point to reduce the backlog at US consulates, but we don’t know if and when this could become a reality.
15. I have an unexpired B-1 / B-2 visitor visa in my passport. Can I use it to return to the US to continue my employment?
REPLY: No. You cannot use a B-1 / B-2 visa (or any other nonimmigrant visa unrelated to your work permit notice) to enter the United States for employment. This would be visa and immigration fraud, and your US employer would be at risk of hiring you if they are not authorized to do so. You should also not use it to enter the United States to request a work-related status change from your employer, as you cannot enter as a visitor with the intent of changing your status upon arrival.
16. I have an ESTA (Visa Waiver) registration that has not expired (or I can obtain registration). Can I use it to return to the US to continue my employment?
REPLY: No. You cannot use ESTA to enter the United States for employment. This would be a visa and immigration scam, and your US employer would be at risk of hiring you if they are not authorized to do so. You also cannot apply to extend your ESTA visit or change to a new status while you are in the United States.
17. Can I ask Congress for assistance in making a visa appointment?
REPLY: You can certainly reach out to your member of Congress for such assistance; However, it is unlikely that you will be successful as the offices of Congress are inundated with such requests. Having compelling facts can help, but unless your situation is life or death, the support of Congress is unlikely to help.
18. If I leave the United States and cannot get a new visa, can I work overseas until I can get the new return visa?
REPLY: It depends on your company’s policies. Your employer may not allow you to do your US job overseas as doing so may raise tax or other legal issues. This should be discussed with your manager, HR, and / or your global mobility department before making any plans to leave.
Copyright © 2021, Hunton Andrews Kurth LLP. All rights reserved.National Law Review, Volume XI, Number 162
